author: SUAREZ, J.

text:
    Jorge TABARES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-3285.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.

      Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA, and SALTER, JJ.
   SUAREZ, J.

Jorge Tabares (“Tabares”) appeals from a judgment and sentence claiming that the trial court erred in denying his motion to strike five (5) jurors for cause. Because the record does not support the trial court’s decision to deny the challenges for cause, we reverse and remand for a new trial.

Tabares was charged with three counts of grand theft and one count of organized scheme to defraud. After a jury trial, the jury returned a verdict of guilty as charged of one count of grand theft, and not guilty of the remaining counts of grand theft and organized scheme to defraud.

During jury selection, the State and defense questioned, among others, venireper-sons identified as numbers 2, 7, 8, 9, and 11. Once questioning of jurors had been completed, defense counsel challenged the five (5) aforementioned prospective jurors for cause. The trial court denied each request. Defense counsel was then forced to use his peremptory challenges to excuse the five (5) jurors challenged for cause. Defense counsel requested three (3) additional peremptory challenges. The trial court granted defense counsel two (2) additional peremptory challenges. Defense counsel wanted to use the third additional peremptory against Juror Suarez. Since the trial court denied defense counsel’s request, Juror Suarez was seated on the jury.

“Where an appellant claims he was wrongfully forced to exhaust his peremptory challenges because the trial court erroneously denied a cause challenge, both error and prejudice must be established.” Kopsho v. State, 959 So.2d 168, 169-70 (Fla.2007). Based on the record before us, we conclude that Tabares has satisfied both prongs of that standard as to all five jurors in question. On appeal the State concedes that Juror Guise, juror No. 11, should have been stricken for cause. We agree with Tabares that the other four jurors, Michelson, Mutter, Perez, and Hodges, should have also been stricken for cause.

The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render a verdict solely on the evidence presented and the instructions on the law given by the court. See Lusk v. State, 446 So.2d 1038, 1041 (Fla.1984). “In evaluating a juror’s qualifications, the trial judge should evaluate all of the questions and answers posed to or received from the juror.” Parker v. State, 641 So.2d 369, 373 (Fla.1994). A juror must be excused for cause if any reasonable doubt exists as to whether the juror possesses an impartial state of mind. See Bryant v. State, 656 So.2d 426, 428 (Fla.1995). Further, as noted in Busby v. State, 894 So.2d 88, 96 (Fla.2004), the mere fact that a juror gives equivocal responses does not disqualify that juror for service. The question is whether the juror’s responses were sufficiently equivocal to generate a reasonable doubt about his fitness as a juror. Prospective jurors Miehel-son’s, Mutter’s, Perez’s and Hodges’ answers were sufficiently equivocal on the questions of whether each could presume Tabares innocent until proven guilty to generate a reasonable doubt about the fitness of each to serve as a juror. See Overton v. State, 801 So.2d 877, 891 (Fla.2001) (holding that the presumption of innocence is defeated if “a juror is taken upon a trial whose mind is in such condition that the accused must produce evidence of his innocence to avoid a conviction”); Kopsho, 959 So.2d at 172 (finding that a prospective juror who cannot presume the defendant to be innocent until proven guilty is not qualified to sit as a juror). None of these five prospective jurors was rehabilitated by either the prosecutor or the judge. See Conde v. State, 860 So.2d 930, 941 (Fla.2003) (finding that where a prospective juror’s answers suggest incompetency to be a juror, rehabilitation by the prosecutor or judge is the proper next step).

For-Cause Challenge to Potential Juror Michelson (Juror No. 8)

The voir dire as to potential Juror Michelson proceeded as follows:

THE COURT: And if you’re picked as a juror, can you be fair and impartial to both the State and the defense?
MR. MICHELSON: I believe so.
MR. WINSTON: Anybody have a similar story about their impact, their interaction with the Court or a prosecutors or defense lawyers or police officers or anybody?
MR. MICHELSON: I think a lot of people are frustrated by what is perceived to be the revolving door of justice.
MR. WINSTON: Okay. A lot of people may be. How about you specifically?
MR. MICHELSON: Absolutely.
MR. WINSTON: Will that frustration prevent you from being fair in this particular case.
MR. MICHELSON: I don’t think so, but still it’s a frustration.
MR. WINSTON: Okay. Will you focus on the evidence here, or are you going to focus on the frustration?
MR. MICHELSON: It’s a toughy. I will try and focus on the evidence, but still there is a certain level of frustration. I mean the wheels grind very slowly.
MRS. HOROVITZ: Mr. Michelson, I believe you said, I believe so when the judge asked. Was that a term of art, or is there something that you think might prevent you from being fair to either the State or the defense?
MR. MICHELSON: Well, there is a presumption because of the circumstances.
MRS. HOROVITZ: Okay. Do you mean the presumption of innocence?
MR. MICHELSON: Not necessarily.
MRS. HOROVITZ: Does anyone agree with Mr. Ortiz? That Mr. Tabares did something. He must have or he wouldn’t be there if he didn’t do anything wrong. And we have to show you that he’s innocent.... Anyone else? Mr. Michelson.
MR. MICHELSON: It’s not an unreasonable thought.
MRS. HOROVITZ: Okay. And do you think that you’ll be able to get rid of that if you’re picked as a juror?
MR. MICHELSON: I can only do the best I can do.
MRS. HOROVITZ: But you’re not sure that you can get rid of that.
MR. MICHELSON: It’s just the way that the scene is laid out.
MRS. HOROVITZ: Okay. When you said that you do agree, does that mean that you’re going to have a harder time believing him because he’s on trial, and he’s being accused? ... Is there anyone else?
MR. MICHELSON: I don’t disagree with the thought.
MRS. HOROVITZ: You don’t disagree. So you may have a hard time believing Mr. Tabares based on the position that he has?
MR. MICHELSON: I may have a hard time believing him whether he voluntarily testifies or not, believing the side.

(Emphasis added).

Here, prospective Juror Michelson indicated that he would try to focus on the evidence. Furthermore, he did not disagree with the thought that because Ta-bares was on trial, he would say anything he could in order to get out of trouble. Michelson never stated that he would be able to deliberate impartially if seated on Tabares’s jury. Neither the State nor the trial court attempted to rehabilitate Michelson after this exchange. Michelson’s consistent equivocal responses, therefore, raised reasonable doubt about his fitness as a juror.

For-Cause Challenge to Potential Juror Mutter (Juror No. 2)

The voir dire as to potential Juror Mutter proceeded as follows:

MRS. HOROVITZ: Does anyone agree with Mr. Ortiz? That Mr. Tabares did something. He must have or he wouldn’t be there if he didn’t do anything wrong. And we have to show you that he’s innocent. Ms. Mutter, you agree that?
MS. MUTTER: Most likely, yes.
MRS. HOROVITZ: You’re thinking, if he doesn’t tell his side of the story, he’s probably guilty; is that right? ... Ms. Mutter, are you thinking that?
MS. MUTTER: Yes.
MRS. HOROVITZ: Are you going to judge him differently as far as whether you believe him than you would the State’s witness or some other witness?
MS. MUTTER: No.
MRS. HOROVITZ: You’re not going to look at him any differently?
MS. MUTTER: No, I don’t think so.
MRS. HOROVITZ: Okay. When you said that you do agree, does that mean that you’re going to have a harder time believing him because he’s on trial, and he’s being accused?
MS. MUTTER: Yes.

(Emphasis added).

Here, prospective Juror Mutter agreed with the idea that Tabares did something illegal, otherwise he would not be on trial. Mutter opined that if Tabares did not tell his side of the story, he was probably guilty. She also indicated that she would have a harder time believing Tabares because he was on trial. Mutter never stated that she would be able to deliberate impartially if seated on Tabares’ jury. Neither the State nor the trial court attempted to rehabilitate Mutter after this exchange. Mutter’s consistent equivocal responses, therefore, raised reasonable doubt about her fitness as a juror.

For-Cause Challenge to Potential Juror Perez (Juror No. 7)

The voir dire as to potential Juror Perez proceeded as follows:

MRS. HOROVITZ: Okay. Is there anyone that agrees with Ms. Guise and Mr. Ortiz that you’re not going to be able to believe Mr. Tabares because he is on trial and will say whatever he needs to? Mr. Perez do you agree with that?
MR. TRUJILLO-PEREZ: (No verbal response.)
MRS. HOROVITZ: Yes, you do?
MR. TRUJILLO-PEREZ: Yes.
MRS. HOROVITZ: When you said that you do agree, does that mean that you’re going to have a harder time believing him because he’s on trial, and he’s being accused? ... Is there anyone else because Mr. Perez didn’t raise his hand, but I asked him directly and he agreed.

(Emphasis added).

Here, prospective juror Perez agreed with the idea that since Tabares was on trial, he would say anything he could in order to not be convicted. The State asked Perez directly if he was going to have a harder time believing Tabares because he was on trial, and Perez answered in the affirmative. Perez never stated that he would be able to deliberate impartially if seated on Tabares’ jury. Neither the State nor the trial court attempted to rehabilitate Perez after this exchange. Perez’s consistent equivocal responses, therefore, raised reasonable doubt about his fitness as a juror.

For-Cause Challenge to Potential Juror Hodges (Juror No. 9)

The voir dire as to potential Juror Hodges proceeded as follows:

MRS. HOROVITZ: So there’s no way a case with an innocent person would go to trial. Is there anyone who thinks that?
MR. HODGES: Even if you are guilty, and you know that you left yourself enough space to get off on it, why would you just go right ahead and say that you’re guilty?
MRS. HOROVITZ: When you say, “you left yourself enough space get to off on it,” what do you mean?
MR. HODGES: You know that there’s enough against you, then you should know that you could probably get out of it. So even if you know and the State knows that you’re guilty and you just say, Well, I’m not guilty because I know that you don’t have enough proof, then you end up here.
MRS. HOROVITZ: So for some people, you’re saying that they may not be accepting an offer from the State to close out their case because they don’t think they can prove it?
MR. HODGES: Right.
MRS. HOROVITZ: Okay. Do you agree though that there are people that take a case to trial not because of what you’re saying but because of they are actually innocent?
MR. HODGES: There are plenty of people who are innocent. But at the same time there is half as much as that is guilty, and they just can’t get off on it.

Here, prospective Juror Hodges indicated that he did not believe that an innocent person would go to trial. Hodges never affirmatively stated that he would be able to deliberate impartially if seated on Ta-bares’ jury. Neither the State nor the trial court attempted to rehabilitate Hodges after this exchange. Hodges’ consistent equivocal responses, therefore, raised reasonable doubt about his fitness as a juror.

We conclude that the five (5) for cause challenges for Jurors Michelson, Mutter, Perez, Hodges, and Guise should have been granted. Each of their answers as to presumption of innocence was sufficiently equivocal to generate a reasonable doubt about his fitness as a juror. That being so, defense counsel only received two (2) additional peremptories and thus has demonstrated prejudice. “A defendant cannot demonstrate prejudice if the trial court grants the same number of additional peremptories as cause challenges that were erroneously denied.” Kopsho, 959 So.2d at 173. It has also been held to be reversible error when a court forces a party to use peremptory challenges on prospective jurors who should have been excused for cause, provided the party has subsequently exhausted all of her peremptory challenges, and an additional challenge is sought and denied. See Joseph v. State, 983 So.2d 781 (Fla. 4th DCA 2008); see also Shannon v. State, 770 So.2d 714, 716 (Fla. 4th DCA 2000) (finding that it was not necessary to explain why a prospective juror for whom the additional peremptory challenge was sought was objectionable; they must merely identify that individual as objectionable).

Because there is reasonable doubt as to the impartiality of juror Michelson, Mutter, Perez, Hodges and Guise, the denial of the for-cause challenges and subsequent denial of Tabares’ motion for an additional peremptory challenge to strike an identified juror were reversible error. This error requires a new trial because the trial court refused to grant a requested additional peremptory challenge and an objectionable juror actually served on the jury as a result of this denial. We therefore reverse and remand for new trial.

Reversed and remanded.


source: Caselaw Access Project

author: CIKLIN, J.

license: Public Domain

text:
    Herbert RAPPAPORT, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1972.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 2009.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Herbert Rappaport appeals the trial court’s summary denial of his motion to withdraw his plea of guilty before sentencing. We conclude that it was error to deny the motion without an evidentiary hearing, as the record does not conclusively refute two of his claims.

Rappaport was charged by information with trafficking in hydrococone, two counts of trafficking in oxycodone, conspiracy to traffic in oxycodone, trafficking in oxyco-done, possession of a firearm by a convicted felon, and possession of morphine. After discussions with the State, Rappaport executed a substantial assistance agreement and entered an open plea before the trial court. The trial court accepted the plea as freely and voluntarily given. Before sentencing, Rappaport filed various motions to withdraw his plea under Florida Rule of Criminal Procedure 3.170(f). Rappaport alleged that he should have been permitted to withdraw his plea because his attorney misinformed him as to certain terms and outcomes resulting from the substantial assistance agreement. He further alleged that he was suffering from mental illness which contributed to his misunderstanding of the agreement. The trial court summarily denied Rappaport’s motion to withdraw.

On appeal, Rappaport asserts that, at a minimum, he was entitled to an evidentiary hearing with respect to the allegations made in conjunction with his motion. The State contends that a hearing was unnecessary because the transcript of the plea colloquy, the substantial assistance agreement and the overall record conclusively refute Rappaport’s allegations.

In a motion to withdraw plea filed pursuant to Florida Rule of Criminal Procedure 3.170(f), “[t]he court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty or no contest to be withdrawn.” Motions made before a sentence “must be liberally construed in favor of the defendant, as the law favors a trial on the merits.” Johnson v. State, 971 So.2d 212, 216 (Fla. 4th DCA 2008). In considering a motion filed under rule 3.170(f), “a trial court is required to allow withdrawal of a plea if a defendant establishes good cause. Upon a lesser showing than good cause, the rule allows the court to use its discretion.” Taylor v. State, 870 So.2d 72, 73 (Fla. 2d DCA 2003) (citation omitted); Smith v. State, 840 So.2d 404, 406 (Fla. 4th DCA 2003) (“[I]n situations where less than good cause is shown, a trial court’s decision will not be reversed absent an abuse of discretion.”)

“In order to show cause why the plea should be withdrawn, mere allegations are not enough; the defense must offer proof that the plea was not voluntarily and intelligently entered.” Robinson v. State, 761 So.2d 269, 274 (Fla.1999). “A defendant should be permitted to withdraw a plea if she files a proper motion and proves that the plea was entered under mental weakness, mistake, surprise, misapprehension, fear, promise, or other circumstances affecting her rights.” Smith, 840 So.2d at 406 (emphasis omitted). “Unless the record conclusively shows the defendant is not entitled to relief, due process requires a hearing.” Bemis v. State, 980 So.2d 625, 627 (Fla. 4th DCA 2008).

The Alleged Promise To Return Confiscated Money

To support Rappaport’s first basis for withdrawal of his plea, his attorney submitted to the court, at the hearing on the motion, an e-mail between an investigator hired by Rappaport’s first attorney and an officer at the Hollywood police department. In that e-mail, the investigator expressed to the police officer that “if the money is gone the guy [Rappaport] is not going to do substantial.” This suggests that Rappaport’s first attorney needed to recover Rappaport’s $100,325 taken for forfeiture in order to get Rappaport to enter into a substantial assistance agreement with the State. In turn, it can be interpreted that Rappaport’s first attorney had promised him that in exchange for entering into the substantial assistance agreement, he would get his money back.

Grounds for the withdrawal of a plea, if evidenced at the plea hearing without correction, may subject a plea to withdrawal. Elias v. State, 531 So.2d 418, 420 (Fla. 4th DCA 1988) (“Since the record supports the defendant’s contention that he misunderstood the length of his sentence, the trial court erred in denying his motion to withdraw his guilty plea.”); See also, State v. Leroux, 689 So.2d 235, 238 (Fla.1996) (“It is only when the record ‘conclusively’ establishes that the defendant did not rely on the advice of counsel that a summary adjudication will be proper”).

While the plea colloquy included a discussion regarding Rappaport’s voluntary and uncoerced entry into the substantial assistance agreement and subsequent plea—and that no promises were made as to the outcome of his case—there was no inquiry as to whether Rappaport was promised anything further to induce him.

“[A] trial court is always well-advised, when accepting a plea, to ascertain whether any promises were made to the defendant apart from those discussed during the plea colloquy. At this juncture it is incumbent upon the defendant to reveal any additional expectations he may have; generally, he will be estopped from later arguing a position contrary to statements made in open court or in writing.” Simmons v. State, 611 So.2d 1250, 1253 (Fla. 2d DCA 1992). Because the record does not refute the claim that Rappaport was promised something for entering into the substantial assistance agreement (which included the entry of a plea), an evidentia-ry hearing was required. See Molina v. State, 942 So.2d 1036, 1037 (Fla. 2d DCA 2006) (failure of trial court to “inquire as to the terms of the cooperation agreement nor as to Molina’s understanding of the terms” requires remand for an evidentiary hearing on the motion to withdraw plea); Timothee v. State, 721 So.2d 776, 777 (Fla. 4th DCA 1998) (Defendant should have been allowed to withdraw his plea where “[t]he record contains no evidence contradicting Timothee’s asserted misunderstanding of the terms of his substantial assistance agreement.”).

Alleged Mental Illness

In support of Rappaport’s claim that he was suffering from mental illness at the time he entered into the substantial assistance agreement (and subsequent guilty plea), his lawyer submitted a 1990 medical record. That record revealed that Rappaport had been diagnosed as a paranoid schizophrenic and suffered from a paranoid personality disorder.

Where a trial court is made aware of a person’s use of medication or history of mental illness at the time of a plea, an evidentiary hearing must be conducted. See Shield v. State, 744 So.2d 564 (Fla. 1st DCA 1999) (evidentiary hearing required for motion to withdraw plea where defendant entered plea while he claims he was suffering from a mental illness and was incapable of advising the court of this condition at the plea colloquy); Harrison v. State, 562 So.2d 827 (Fla. 2d DCA 1990) (without a plea colloquy or other evidence, defendant’s claim that he was under psychoactive medication at the time he entered his plea requires an evidentiary hearing).

While questions asked and answered at a recorded meeting concerning the substantial assistance agreement refuted any claim of mental illness, similar questions were not asked of Rappaport as part of the plea colloquy. See Pagliaro v. State, 963 So.2d 902 (Fla. 5th DCA 2007) (defendant’s claim in his 3.850 motion that he could not understand the nature and consequences of his plea due to the use of psychotropic medications was not refuted by the record as the court did not ask the defendant if he was under the influence of any medications); Stokes v. State, 938 So.2d 644, 645 (Fla. 2d DCA 2006) (“Whether Ms. Stokes was on medication that affected her competency to enter the no contest plea was not addressed at the plea hearing. Thus, there was no record evidence to refute Ms. Stokes’ later claim that she was not competent to enter the plea because she was affected adversely by medication.”).

The allegations of (1) an inducing attorney promise and (2) an involuntary plea caused by mental illness — both supported by documentary evidence — presented good cause for withdrawal of Rappaport’s guilty plea. Because these allegations were not conclusively refuted by the record, Rappa-port was entitled to an evidentiary hearing.

Reversed and remanded for further proceedings consistent with this opinion.

FARMER and HAZOURI, JJ., concur.

      . A substantial assistance agreement with the State provides the defendant with the possibility of a sentence below the statutory minimum mandatory in exchange for substantial assistance "in the identification, arrest, or conviction of any ... person engaged in trafficking in controlled substances.” § 893.135(4), Fla. Stat. (2007).


author: STEVENSON, J. WARNER, J.,

text:
    Jonathan BLEIWEISS, Petitioner, v. STATE of Florida, Respondent.
    No. 4D09-4873.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 2009.
    Thomas D. Sclafani and Anne Blanford, Fort Lauderdale, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for respondent.
   STEVENSON, J.

Jonathan Bleiweiss, a Broward sheriffs deputy accused of homosexually abusing illegal immigrants, is being held without bond on three sexual battery counts following an Arthur hearing. In this petition for writ of habeas corpus, Bleiweiss has argued that relief should be granted because: (1) the finding of proof evident, presumption great, was based solely on hearsay; (2) the court made the finding without first hearing argument from counsel (denying due process); (3) the evidence did not establish proof evident, presumption great; and (4) the trial court refused to set bond based on facts not in the record. The State was ordered to respond, and Bleiweiss filed a reply.

We grant the petition based on Blei-weiss’s argument (2) — that, after the evidence was presented, the court made its finding that the proof was evident and the presumption great and denied counsel’s request to make argument on the same. We believe that the failure to allow argument of counsel, in this case, amounted to a basic denial of petitioner’s right to be heard at an adversarial judicial proceeding that could deprive him of his liberty — the most fundamental of all due process rights. See Chalk v. State, 443 So.2d 421, 422-23 (Fla. 2d DCA 1984) (holding that patient’s constitutional due process rights were violated when his trial counsel was not allowed to present a closing argument prior to involuntary commitment); J.M.S. v. State, 921 So.2d 813, 815-16 (Fla. 5th DCA 2006) (finding error in trial court’s refusal to permit defense counsel to make closing argument in bench trial even though court permitted counsel to later submit argument in writing).

The extent of procedural due process depends on the circumstances. See Massey v. Charlotte County, 842 So.2d 142, 146 (Fla. 2d DCA 2003). This case is distinguishable from State ex rel. Funmaker v. Klamm, 106 Wis.2d 624, 317 N.W.2d 458 (1982), cited in the dissenting opinion. The “preliminary examination” at issue in Klamm was held before a magistrate to determine whether probable cause existed for a “bind over.” Id at 460, 460 n. 1. Review of the controlling statute in Klamm, section 970.03, Wisconsin Statutes, shows that Wisconsin’s “preliminary examination” is merely to determine whether probable cause exists for felony charges or whether the case should be dismissed or proceed as a misdemeanor instead. The issue in Klamm was not pretrial detention (the denial of bail), but merely whether there was probable cause for felony charges. Here, the pretrial detention determination will result in a significant deprivation of liberty, which will likely last up to the date of trial.

An Arthur hearing under Florida law and the Florida Constitution demands more than mere “probable cause” before pretrial detention may be ordered. Because the State can rely on affidavits, cross examination is not available to point out inconsistencies in statements. The right to counsel at a pretrial detention hearing contained in Florida Rule of Criminal Procedure 3.130(c) may not be meaningful in a complex case if counsel can be prevented from presenting argument as to why the State’s evidence is insufficient. Legal argument permits counsel to point out applicable law and conflicts in the evidence prior to the judge making a ruling. See Herring v. New York, 422 U.S. 853, 857-58, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975) (holding that statute which permitted judge to deny defense closing in bench trial violated right to counsel and emphasizing the importance of argument by counsel in the fact-finding process).

In three pages of legal analysis and discussion, the dissent eloquently dissects the specific charges and evidence and presents a compelling argument as to why the State did not meet its extraordinary burden in this case. The defense counsel at the hearing below was given no such opportunity. In view of the intricacies and complexities of this case — in relation to both the legal charges and the factual allegations — we have no trouble concluding that the trial court’s refusal to allow some minimal form of argument by counsel prior to its determination prevented a “fair hearing” and was a violation of the fundamental due process right to be heard. “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Of course, on remand, the court may place reasonable restrictions on the length and manner of counsel’s argument, and in its discretion, may even require counsel to submit its argument in writing.

Because of our disposition on this issue, we have not reached the other arguments raised by Bleiweiss. On remand, we direct that the proceedings be heard by a different judge.

Petition Granted.

HAZOURI, J., concurs.

WARNER, J., dissents in part and concurs in part with opinion.

WARNER, J.,

dissenting in part and concurring in part.

While I disagree with the reasoning of the majority opinion, I would grant the petition for a different reason and require the setting of bail because the state failed to carry its burden in the Arthur hearing. I disagree, however, with the majority as to the issue of denial of argument and as to its conclusion that the other errors should not be addressed.

The denial of a request for closing argument does not constitute a constitutional denial of due process. The Fifth District’s decision in J.M.S. v. State, 921 So.2d 813 (Fla. 5th DCA 2006), upon which the majority relies, holds that a violation of due process occurs when counsel is denied the opportunity to sum up the evidence at the close of a criminal trial. The court in J.M.S. relied on Herring v. New York, 422 U.S. 853, 857-58, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975), which decided that such a right exists as part of the Sixth Amendment. However, while Herring stands for that proposition, it contains an important footnote limiting the scope of its ruling:

We deal in this case only with final argument or summation at the conclusion of the evidence in a criminal trial. Nothing said in this opinion is to be understood as implying the existence of a constitutional right to oral argument at any other stage of the trial or appellate process.

Id. at 863 n. 13, 95 S.Ct. 2550 (emphasis supplied).

While no Florida cases could be found on point, in State ex rel. Funmaker v. Klamm, 106 Wis.2d 624, 317 N.W.2d 458 (1982), the court held that a defendant did not have a constitutional right to argument at a preliminary hearing to determine probable cause that a felony was committed and to establish bail, relying on Her ring. In denying such a right, the court said:

[Although there is a constitutional right to counsel at the preliminary hearing, the constitution does not require that counsel be allowed to play the same rule as counsel at trial. A counsel’s role is necessarily limited by the limited scope of the preliminary examination. The decision to allow closing argument rests within the sound discretion of the examining judge. While it may be the better practice to allow closing arguments at most preliminary hearings, we hold that it is not constitutionally required.

106 Wis.2d at 634, 317 N.W.2d 458.

In cases involving a capital offense or an offense punishable by life imprisonment, the procedure for determining whether a defendant has a right to bail is set forth in State v. Arthur, 390 So.2d 717, 719 (Fla.1980), which requires the state to produce evidence greater than the mere filing of an information to show that the proof is evident and the presumption great of the defendant’s guilt. Where the state makes such a showing, it then shifts the burden to the defendant to show that he should still be entitled to bail:

Simply to present the indictment or information is not sufficient. The state’s burden, in order to foreclose bail as a matter of right, is to present some further evidence which, viewed in the light most favorable to the state, would be legally sufficient to sustain a jury verdict of guilty.... The state can probably carry this burden by presenting the evidence relied upon by the grand jury or the state attorney in charging the crime. This evidence may be presented in the form of transcripts or affidavits. If, after considering the defendant’s responsive showing, the court finds that the proof is evident or the presumption great, the court then has the discretion to grant or deny bail. On this issue, the burden is on the accused to demonstrate that release on bail is appropriate.

Id. at 720 (citation omitted).

In this case, petitioner was given notice and an opportunity to be heard. The court allowed him to present evidence, although his counsel declined. I can find nothing in the Arthur procedure or any cases involving pre-trial detention, which demands that the trial court afford counsel the opportunity to present closing argument. Arthur hearings are not formal trials. Evidence can be submitted in the form of affidavits or transcripts. Indeed, the constitutional right of confrontation does not apply to pretrial release proceedings. Godwin v. Johnson, 957 So.2d 39, 40 (Fla. 1st DCA 2007). Although it is certainly the better practice to allow argument and courts should never routinely dispense with it, Herring explains that it is not constitutionally required. By its opinion, the majority creates a mandatory rule of procedure requiring closing argument in pretrial proceedings. Only the supreme court has the authority to create rules of procedure. See Art. V, § 2(a), Fla. Const.

Nevertheless, I would grant the petition on the merits. The state presented one investigating detective at the hearing who took the witnesses’ statements. Those statements constituted the only evidence of the crimes. This court is in the same position as the trial court to determine whether the proof is evident and presumption great, and deference to the trial court’s findings of fact does not fully apply. See Thompson v. State, 548 So.2d 198, 204 n. 5 (Fla.1989). Based upon my own review of the evidence, the state’s evidence does not meet the extraordinarily heavy burden that its evidence must exceed proof beyond a reasonable doubt. See Elderbroom v. Knowles, 621 So.2d 518, 520 (Fla. 4th DCA 1993).

Although the state charged the petitioner with multiple felonies, only three could constitute a capital or life felony. According to the state’s response, it charged petitioner with several violations of section 794.011(4)(g), sexual battery by a law enforcement officer, during which petitioner “carried or displayed a firearm, and during the commission of the offense Jonathan Bleiweiss actually possessed a firearm....” Section 794.01l(4)(g) increases the penalty for a sexual battery, which is committed by a law enforcement officer, to a first degree felony. Under section 775.087(l)(a) that felony is increased to a life felony if the person “carries, displays, uses, threatens to use, or attempts to use” a firearm. One of the victims of the sexual battery was asked by the investigator if the petitioner had a gun, and he responded “yes.” Not one of the victims, however, mentioned that the petitioner used the gun or threatened to use it during the commission of any of the offenses.

Moreover, the evidence in the statements, and presented at the hearing, is not of the quantity or quality to meet the heavy burden on the state in an Arthur hearing. See Elderbroom, 621 So.2d at 520; see also Whitehead v. McCampbell, 700 So.2d 135 (Fla. 4th DCA 1997). Multiple witnesses told investigators that the petitioner had fondled them and then asked to perform oral sex. When those witnesses said “no,” the petitioner did not force the act, indicating that the petitioner may not have acted without “consent.” All of the witnesses were illegal aliens who were allowed to file for special visas to stay in this country because they reported this crime, which could have influenced their testimony. Most of the witnesses were from the same apartment complex, and detectives used a maintenance man at the complex to “recruit” complainants after two witnesses complained to Fort Lauderdale police. Neither of the initial complainants alleged that petitioner engaged in oral sex with them. At least one witness to one of the touching incidents remarked to a friend that the police officer was the victim’s boyfriend or “client,” thus indicating that at least one of the alleged victims may have been a male prostitute. The petitioner did not confess, and an undercover operation arranged to incriminate petitioner failed to reveal any illegal conduct. While there is sufficient evidence to convict petitioner, the state has not provided evidence which exceeds proof beyond a reasonable doubt, given the totality of his contacts with other victims, the credibility issues raised by the visa applications and witness recruitment, and the lack of any physical evidence or confession connecting the petitioner to the life felony crimes. Cf. Gallo v. Lamberti, 972 So.2d 305 (Fla. 4th DCA 2008) (evidence sufficient to meet Arthur requirements where defendant confessed to hitting victim and other evidence showed that the homicide would constitute second degree murder and not merely manslaughter).

Although I disagree that the failure to permit the defense to argue was a denial of due process under the circumstances, upon review of the record, I conclude that the petition should be granted and the trial court directed to consider bail.

      . State v. Arthur, 390 So.2d 717, 719 (Fla.1980) (holding that, before pretrial detention may be ordered in a life felony case, State must show that “proof is evident or the presumption great”). See also Art. I, § 14, Fla. Const. The degree of proof in this posture is greater than beyond a reasonable doubt. Elderbroom v. Knowles, 621 So.2d 518, 520 (Fla. 4th DCA 1993).

      . In some sense, this seems like a double enhancement because under chapter 794 a sexual battery is already enhanced from a second degree felony to a first degree felony where the person committing the offense is a law enforcement officer. Compare § 794.01 l(4)(g) with § 794.011(5), Fla. Stat. Law enforcement officers routinely carry firearms as part of the uniform while on official duty. The state has sought a further enhancement under section 775.087(l)(a) in this case because petitioner was apparently in uniform possessing his weapon. Because the possession of a firearm is not an essential element of a violation of section 794.01 l(4)(g), such a double enhancement does not violate the statute. See § 775.087(1), Fla. Stat. (providing that the weapon enhancement does not apply to “a felony in which the use of a weapon or firearm is an essential element”).


author: WALLACE, Judge.

text:
    Michael R. MURPHY, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3527.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 2009.
    Michael R. Murphy, pro se.
   WALLACE, Judge.

Michael R. Murphy appeals the summary denial of his motion for postconviction relief filed in accordance with Florida Rule of Criminal Procedure 3.850. We reverse and remand with instructions to grant an evidentiary hearing or to attach the relevant portions of the record that conclusively refute Mr. Murphy’s claims.

I. THE PROCEDURAL HISTORY

On January 5, 1996, Mr. Murphy was convicted of first-degree murder and grand theft after a jury trial. We affirmed Mr. Murphy’s convictions but reversed and remanded for resentencing. Murphy v. State, 694 So.2d 835, 835 (Fla. 2d DCA 1997). Mr. Murphy filed motions under Florida Rule of Criminal Procedure 3.850 on August 13, 1999, and December 15, 2005. We affirmed without opinion the denials of these two rule 3.850 motions. Murphy v. State, 937 So.2d 132 (Fla. 2d DCA 2006) (table decision); Murphy v. State, 864 So.2d 414 (Fla. 2d DCA 2003) (table decision). Mr. Murphy unsuccessfully sought federal habeas relief after our affirmance of the denial of his second rule 3.850 motion. Murphy v. Sec’y, Dep’t of Corn., 279 Fed.Appx. 877 (11th Cir.2008).

On May 27, 2008, Mr. Murphy filed a third rule 3.850 motion in which he claimed (1) that newly discovered scientific evidence demonstrated that the comparative bullet-lead analysis used by the State and described to the jury during his trial has been abandoned; (2) that he was denied his right to due process under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because the State failed to disclose favorable scientific evidence regarding comparative bullet-lead analysis; and (3) that he was denied his right to due process under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), when the State intentionally permitted false or misleading evidence based on comparative bullet-lead analysis to be presented to the jury and used to obtain his convictions. The post-conviction court summarily denied all postconviction relief on June 9, 2008. Afterward, Mr. Murphy filed a motion for rehearing. The postconviction court denied the motion for rehearing. This appeal followed.

II. THE NEWLY DISCOVERED EVIDENCE CLAIM

In ground one of Mr. Murphy’s motion, he alleged that the State had presented evidence from an FBI expert on comparative bullet-lead analysis that bullets found at the crime scene came from a box of bullets found in Mr. Murphy’s possession. Mr. Murphy claims that on November 19, 2007, he discovered a news article indicating that the scientific theory used to determine that the bullets from the crime scene came from the box in his possession was flawed and that FBI experts had been falsely testifying about the accuracy or reliability of comparative bullet-lead analysis. Mr. Murphy affirmatively alleged that this newly discovered evidence (1) was unknown at the time of trial, (2) could not have been discovered by the exercise of due diligence, and (3) would probably produce an acquittal on retrial. The postcon-viction court denied relief on this ground because the news article was not evidence. The postconviction court also found that any newly discovered evidence undermining comparative bullet-lead analysis would not probably produce an acquittal on retrial because the FBI expert’s testimony was cumulative and another witness testified that Mr. Murphy admitted that he had committed the murder.

On appeal, Mr. Murphy argues that the postconviction court erred when it denied his motion because the news article was not evidence. He contends that his motion cited “studies, investigative reports, and potential witnesses” as sources of the newly discovered evidence. Mr. Murphy’s motion cites a 1997 report by the Office of the Inspector General of the United States Department of Justice that Mr. Murphy claims criticized the FBI laboratory and the FBI agents working there. The motion also refers to a 2004 report by the National Research Council on comparative bullet-lead analysis that concluded that “‘the statistical methods and its expert testimonies were flawed’ ” and that “ ‘available data does not support any statement that a crime bullet came from a particular box of ammunition.’ ” In Moss v. State, 860 So.2d 1007, 1008 (Fla. 5th DCA 2003), the Fifth District reversed the summary denial of a rule 3.850 motion alleging newly discovered evidence based on the 1997 report cited by Mr. Murphy. And in Clemons v. State, 392 Md. 339, 896 A.2d 1059, 1078 (2006), the Court of Appeals of Maryland relied on such studies when it said that

a genuine controversy exists within the relevant scientific community about the reliability and validity of [comparative bullet-lead analysis]. Based on the criticism of the processes and assumptions underlying [comparative bullet-lead analysis], we determine that the trial court erred in admitting expert testimony based on [comparative bullet-lead analysis] because of the lack of general acceptance of the process in the scientific community.

Thus we agree that these reports constitute evidence.

Our conclusion that the reports explaining the problems with comparative bullet-lead analysis do constitute evidence leads us to the question of whether they could also qualify as “newly discovered evidence.” Newly discovered evidence is evidence that was unknown at the time of trial and could not have been discovered by the use of due diligence. Rogers v. State, 957 So.2d 538, 552 (Fla.2007). In his motion, Mr. Murphy alleged that the problems with the testimony of the FBI’s expert were unknown to him and his trial counsel until November 19, 2007; could not have been discovered by the exercise of due diligence; and would probably produce an acquittal on retrial. In this regard, Mr. Murphy alleged:

[T]he circumstances under which the evidence was discovered[ ] and the nature of the evidence clearly demonstrate[ ] that it was unknown to both the movant and defense counsel[ ] and could not have been discovered by the exercise of due diligence.

Because the postconviction court summarily denied Mr. Murphy’s postconviction motion without granting him an evidentiary hearing, we must accept the factual allegations of the motion as true to the extent that they are not refuted by the record. See Floyd v. State, 808 So.2d 175, 182 (Fla.2002) (citing Occhicone v. State, 768 So.2d 1037, 1041 (Fla.2000)). Accepting the motion’s unrefuted factual allegations as true, we cannot agree with the postcon-vietion court’s conclusion that the reports on comparative bullet-lead analysis could not qualify as newly discovered evidence.

The postconviction court also denied this claim because any newly discovered evidence about comparative bullet-lead analysis would probably not produce an acquittal on retrial. In particular, the postconviction court noted that the relevant FBI expert testimony was cumulative and that Mr. Murphy admitted to committing the murder. However, “[w]hile the postconviction court refuted [Mr. Murphy’s] allegations by citing to the transcript and sometimes quoting from it, it did not attach the portions of the record it cited, as required by rule 3.850(d).” Livingston v. State, 16 So.3d 276, 277 (Fla. 2d DCA 2009). Accordingly, we reverse and remand for the postconviction court to attach the relevant portions of the record conclusively refuting this claim or to grant an evidentiary hearing on this ground.

III. THE BRADY CLAIM

Ground two asserted that the State failed to comply with Brady when it did not disclose a 1991 FBI study, a 1994 federal investigation, and the 2004 National Research Council report that undermined the accuracy or reliability of comparative bullet-lead analysis. Mr. Murphy’s motion alleges that the FBI experts used by the State, as members of the FBI Crime Lab, knew about the problems affecting the accuracy or reliability of comparative bullet-lead analysis as early as 1991 and were aware of misconduct by the FBI as early as 1994. Mr. Murphy cited United States v. Bender, 304 F.3d 161 (1st Cir.2002), to support his claim that “Knowledge of these findings must be imputed to the prosecutor, as the FBI Crime Lab was acting on behalf of the State.”

The postconviction court denied this claim because Mr. Murphy did not suggest that “the prosecution in this ease knew or should have known, at the time of trial or even after, that their evidence was deficient.” On his motion for rehearing, Mr. Murphy pointed out that his rule 3.850 motion alleged that the FBI’s knowledge of the favorable reports must be imputed to the State under Bender. In Bender, the court explained that “[t]o comply with Brady the individual prosecutor has a duty to find any evidence favorable to the defendant that was known to those acting on the government’s behalf. Such persons include other members of the prosecuting team, including police investigators working for the prosecution.” 304 F.3d at 164 (citation omitted). The prosecution had an obligation to disclose “favorable evidence known to others acting on the government’s behalf in the case.” Archer v. State, 934 So.2d 1187, 1203 (Fla.2006). “The postconviction court is in error to the extent that the court’s order is read to mean that ... the prosecutor’s obligation was only to give to [Mr. Murphy] favorable evidence which was in the prosecutor’s personal possession.” Id.; see also Commonwealth v. Lykus, 451 Mass. 310, 885 N.E.2d 769, 781-83 (2008) (holding that the FBI’s knowledge of favorable evidence could be imputed to state prosecutors). Thus we cannot agree with the postconviction court’s conclusion that this claim is without merit.

Because Mr. Murphy’s motion was facially sufficient, we reverse and remand for the postconviction court to attach the relevant portions of the record that conclusively refute Mr. Murphy’s motion or to grant an evidentiary hearing on this ground.

IV. THE GIGLIO CLAIM

Mr. Murphy’s third ground alleged that based on the 1991 FBI study, the State should have known that the FBI expert’s testimony was false and misleading. The postconviction court did not rule on this claim. Accordingly, we reverse and remand to allow the postconviction court to consider the claim. See Kafus v. State, 933 So.2d 1267, 1267 (Fla. 2d DCA 2006); Calzada v. State, 934 So.2d 541, 542 (Fla. 3d DCA 2006).

V. CONCLUSION

For these reasons, we reverse the post-conviction court’s summary denial of Mr. Murphy’s rule 3.850 motion and remand for further proceedings consistent with this opinion.

Reversed and remanded.

KHOUZAM and MORRIS, JJ„ Concur.

      . John Solomon, FBI’s Forensic Test Full of Holes, Wash. Post, Nov. 18, 2007, at A01, available at http://www.washingtonpost.com/ wpdyn/content/article/2007/11/17/AR 2007111701681.html. The article explains:
      Hundreds of defendants sitting in prisons nationwide have been convicted with the help of an FBI forensic tool that was discarded more than two years ago. But the FBI lab has yet to take steps to alert the affected defendants or courts, even as the window for appealing convictions is closing, a joint investigation by The Washington Post and "60 Minutes” has found.
      The science, known as comparative bullet-lead analysis, was first used after President John F. Kennedy’s assassination in 1963. The technique used chemistry to link crime-scene bullets to ones possessed by suspects on the theory that each batch of lead had a unique elemental makeup.
      In 2004, however, the nation's most prestigious scientific body concluded that variations in the manufacturing process rendered the FBI's testimony about the science "unreliable and potentially misleading.” Specifically, the National Academy of Sciences said that decades of FBI statements to jurors linking a particular bullet to those found in a suspect’s gun or cartridge box were so overstated that such testimony should be considered "misleading under federal rules of evidence.”
      A year later, the bureau abandoned the analysis.

        Id.

      . The postconviction court did not address the issue of whether Mr. Murphy's motion was timely filed. The reports could not have been discovered at the time of Mr. Murphy’s trial because they were not prepared until 1997 and 2004, respectively. The Washington Post article indicates that the FBI abandoned comparative bullet-lead analysis in 2005 but, as of November 18, 2007, had not informed defendants about the problems related to this type of evidence. Solomon, supra, at A01. Mr. Murphy alleged that he first learned about the reports on November 19, 2007. He filed his motion on May 27, 2008, less than two years later. However, we express no opinion concerning whether Mr. Murphy’s claims of newly discovered evidence based on the unreliability of comparative bullet-lead analysis were actually “filed within two years of the time when [the] evidence upon which avoidance of the time limit was based could have been discovered through the exercise of due diligence.” Bolender v. State, 658 So.2d 82, 85 (Fla.1995); see also Glock v. Moore, 776 So.2d 243, 249-51 (Fla.2001) (rejecting a claim of newly discovered evidence based on an assertion that a traffic stop was illegal because it was predicated on impermissible racial profiling where the claim of illegal discriminatory enforcement of the traffic laws was a claim that had been known for a number of years, as indicated in reported cases addressing the issue). This is an issue that the postconviction court may address on remand.

      . The Washington Post article explains that this 1991 study "found that bullets packaged 15 months apart — a span that assumed separate batches of lead — had the exact composition, potentially undercutting the theory that each batch was unique [and] that bullets in a single box often had several different lead compositions.” Solomon, supra, atAOl.


author: SILBERMAN, Judge.

text:
    Zamont Jerell BRANTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4319.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 2009.

      James Marion Moorman, Public Defender, and Jeffrey Sullivan, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Elba C. Martin-Schomaker, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Zamont Jerell Branton seeks review of the order denying his motion for postcon-viction relief which was filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the summary denial of four subclaims in claim one because the post-conviction court erroneously determined that these subclaims were conclusively refuted by the record. We affirm the denial of the remainder of Branton’s claims without comment.

The State charged Branton and code-fendants Derrick Moultry and Daniel Pressley with armed carjacking and armed robbery based on allegations that they approached a man who was selling clothing out of the back of his car, threatened him with a gun, and stole the car and clothing. At trial, the State presented the testimony of the victim and the investigating detective. The victim identified Bran-ton as one of the participants in the crime from a photopak prior to trial and in person at trial. The detective testified regarding the victim’s pretrial identification of Branton. Branton raised an alibi defense, claiming that he could not have committed the crimes on the date charged because he was at Busch Gardens with friends. Branton also claimed that the victim mistakenly identified him because the victim had previously sold clothing to Branton from his car. Branton called his girlfriend Chanel Wilson, her close friend Lequisha Jefferson, and James Ragsdale to testify in support of his defenses, but Branton did not take the stand.

In claim one, Branton alleged that trial counsel was ineffective for failing to interview and call several witnesses to testily at his trial, including Aubrey Wright, Daniel Pressley, Trevior Daniels, and Quantavia Ponder. Branton alleged that he asked counsel to interview and call these witnesses and informed counsel of the witnesses’ locations and the substance of their testimony. The court summarily denied relief as to these subclaims.

As to witness Wright, Branton alleged that Wright was the girlfriend of codefen-dant Moultry. Wright would have testified that Moultry and some other men committed a carjacking and robbery but that Branton was not with them. Although Wright had previously made statements identifying Branton as one of the perpetrators, she would have testified that her previous statements were made under duress and coercion by Moultry.

The postconviction court determined that the record refuted Branton’s assertion that he was prejudiced by counsel’s failure to interview and call witness Wright. The court explained that “because the record contains no testimony that Wright identified [Branton] as being involved in the alleged offenses, her proposed testimony would be unnecessary.” However, testimony by Wright that Bran-ton was not involved in the offenses would have been integral to Branton’s defenses of alibi and mistaken identification, even if it could have been impeached with Wright’s prior inconsistent statement. Accordingly, the summary denial of this sub-claim was improper.

As to witness Pressley, Branton alleged that Pressley would have testified that he was at Branton’s house when Branton’s girlfriend Chanel Wilson and another girl picked up Branton to take him to Busch Gardens on the date of the offense. Press-ley would have testified that Branton was not with Pressley and codefendant Moultry later that day. Additionally, Pressley would have testified that a person named Joshua was with him and Moultry and that Joshua resembles Branton.

The postconviction court determined that Pressley’s claim was refuted by an excerpt of a taped confession provided by the State in its response. This confession was made by Pressley and was introduced at Pressley’s trial. In addition to implicating Pressley, the confession also implicated Branton. We are not convinced that evidence from the record in Pressley’s trial can be used by the postconviction court to refute Branton’s postconviction claim. See Fla. R.Crim. P. 3.850(d) (“If the motion, files, and records in the case conclusively show that the movant is entitled to no relief, the motion shall be denied without a hearing.” (emphasis added)). Regardless, the existence of the taped confession did not refute Branton’s claim that Pressley would have testified differently at Branton’s trial. Even if Pressley could have been impeached with his prior taped confession, exonerative testimony from a codefendant would have been integral to Branton’s defense. Accordingly, the summary denial of this subclaim was improper.

As to witness Daniels, Branton alleged that Daniels would have testified that he spoke with Branton at a McDonald’s across the street from Busch Gardens at 6:15 p.m. on the date of the offense. Bran-ton claims that this testimony would have corroborated Lequisha Jefferson’s testimony that she picked Branton and Wilson up from the McDonald’s at approximately 6:30 p.m. on that date.

The postconviction court determined that the testimony would have been cumulative to the testimony of witnesses Wilson and Jefferson. However, this finding is erroneous because the testimony of both Wilson and Jefferson was severely impeached due to their close relationship with Branton. See Balmori v. State, 985 So.2d 646, 650 (Fla. 2d DCA 2008) (holding that postconviction court erred in determining evidence would have been cumulative to the defendant’s trial testimony because it was necessary to corroborate his testimony). Accordingly, the summary denial of this subclaim was improper.

As to witness Ponder, Branton alleged that Ponder would have testified that Branton was not one of the individuals who was with the codefendants on the date of the offense. Although Ponder made a prior statement identifying Branton as a participant in the crimes, she would also testify that her prior statement was procured by threats. The postconviction court determined that Branton was not prejudiced by counsel’s failure to interview and call witness Ponder because the record contains no testimony that Ponder identified Branton as being involved in the crimes. However, as with the claim concerning the testimony of witness Wright, testimony by Ponder that Branton was not involved in the offenses would have been integral to his defense of mistaken identification and alibi even if it could have been impeached with the prior inconsistent statement. Accordingly, the summary denial of this subclaim was improper.

For the foregoing reasons, we reverse as to the denial of the above four subclaims. Because the court has already determined that the subclaims are facially sufficient, we remand for an evidentiary hearing.

Affirmed in part; reversed in part; remanded.

FULMER and DAVIS, JJ., Concur.


author: ROTHENBERG, J.

text:
    Sergei V. FEDOROV, individually, and as Trustee of the Sergei V. Fedorov Living Trust, dated October 4, 2002, Petitioners, v. CITIZENS STATE BANK, Respondent.
    No. 09-2800.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 2009.

      Jaffe, Raitt, Heuer & Weiss and Michael F. Jacobson; Mantese and Rossman and Brendan H. Frey; and Michael S. Olin, Miami, for petitioners.
    Paul M. Kade, Miami, for respondent.
    Before COPE, CORTIÑAS, and ROTHENBERG, JJ.
   ROTHENBERG, J.

In this petition, Sergei V. Fedorov seeks quashal of the trial court’s duplicate orders denying his motion for stay. Because we conclude that the orders below would result in a material injury that cannot be corrected on appeal and that the lower court departed from the essential requirements of law, we grant the petition.

Fedorov sought a stay on the ground that Citizens State Bank filed an earlier action in Michigan involving the same parties and substantially the same issues, and the Michigan case will decide all or substantially all of the issues in this action. The trial court denied the motion for stay in orders dated September 15, 2009, and September 16, 2009, and Fedorov petitions this Court for a writ of certiorari to quash these orders.

The writ of certiorari is appropriate only where the lower court’s order results in a material injury which cannot be corrected on appeal and departs from the essential requirements of law. Sardinas v. Lagares, 805 So.2d 1024, 1025 (Fla. 3d DCA 2001) (quoting Fla. Crushed Stone Co. v. Travelers Indem. Co., 632 So.2d 217, 220 (Fla. 5th DCA 1994)). Here, Fedorov contends that he will be materially or irreparably harmed if he is forced to litigate the same case in two separate states. We agree. The instant action and the Michigan case involve the same parties, and both turn on whether Fedorov is liable for loans made by Citizens State Bank for the benefit of a nonparty. At an August 31, 2008, hearing, the trial judge acknowledged that resolution of the Michigan case would resolve many of the issues in the subsequently filed Florida case:

So you have the exact same parties.... You have ... the exact same counterclaim and what could have been the exact same Complaint but for the fact that they chose to file the second lawsuit here.... Another concern I have is with the discovery. It seems to me that if I stay this case you are going to be taking discovery in the Michigan case and then you are going to be doing most of that, if not all of that, all over again when this case is revived.

It is well settled in Florida that “ ‘causes of action do not have to be identical’ to require a stay of the second-filed action,” and “[i]t is sufficient that the two actions involve a single set of facts and that resolution of the one case will resolve many of the issues involved in the subsequently filed case.” Pilevsky v. Morgans Hotel Group Mgmt., LLC, 961 So.2d 1032, 1035 (Fla. 3d DCA 2007). A trial court has broad discretion to order or refuse a stay of an action pending before it; nonetheless, it is an abuse of discretion to refuse to stay a subsequently filed state court action in favor of a previously filed action which involves the same parties and the same or substantially similar issues. 961 So.2d at 1034-35. “This rule is based on principles of comity. Comity principles dictate that an action should be stayed, and a trial court departs from the essential requirements of law by failing to grant such a stay, when the first-filed lawsuit involves substantially similar parties and substantially similar claims.” Id. at 1035. We therefore find that the trial court departed from the essential requirements of law in denying Fedorovs motion for stay. Accordingly, we grant the petition and quash the orders dated September 15, 2009, and September 16, 2009.

Certiorari granted; orders quashed.


author: RAMIREZ, C.J.

text:
    Edie LAQUER, and Laquer Corporate Realty Group, Inc., Appellants, v. CONVERGENCY PLAZA PARTNERS, etc., et al., Appellees, v. Feldman Gale, P.A., Non-party Appellee.
    No. 3D09-1797.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 2009.

      Broad and Cassel and Mark F. Raymond, Gary E. Lehman and Beverly A. Pohl, Fort Lauderdale, for appellants.
    Feldman Gale, and Ashutosh B. Dalvi, Christopher P. Demetriades, Miami and Janet T. Munn, for appellees.
    Before RAMIREZ, C.J., and ROTHENBERG, J„ and SCHWARTZ, Senior Judge.
   RAMIREZ, C.J.

This is an appeal from a non-final order directing the parties to proceed to arbitration after the parties had entered into an agreement to waive arbitration, which agreement had been approved by prior court order. The court found that the prior waiver of arbitration “was based on a misunderstanding.” We reverse because the record does not support such a finding.

This appeal stems from an attorneys’ fee dispute between appellant Edie Laquer and her former counsel in the case, appel-lee Feldman Gale, P.A. On February 18, 2009, the parties reached an agreement whereby Jeffrey Feldman expressly waived any right to arbitration on the issue of fees owed. The order memorializing the agreement states:

4.By agreement of the parties, this Court shall determine the sole issue of Feldman Gale, P.A.’s entitlement to any outstanding fees and costs from Plaintiffs and the amount of those fees and costs, if any, that are due and owing. By agreement, it is expressly understood that the parties reserve and have not waived their respective rights to arbitrate any and all other disputes that may now or in the future exist or arise between them pursuant to the arbitration clause set forth in the parties’ retainer letter. Plaintiffs reserve all rights to attack the propriety of that arbitration clause.

In preparation for the court hearing, a dispute arose regarding the scope of discovery which prompted Feldman Gale, P.A. to move to quash the notices of deposition, asserting that (1) the discovery was unnecessary and beyond the scope of the issues before the court, (2) the parties had waived any right to conduct discovery in the Retainer Agreement, and (3) the notices violated the Rules of Civil Procedure, by purporting to shorten the 30-day time period in rule 1.350 for the production of documents. At the hearing, the trial court orally quashed the notices of deposition. At a subsequent hearing, the parties continued to argue about the scope of discovery. Feldman Gale, P.A. maintained that it had only agreed to waive arbitration of a narrow issue — whether the firm was entitled to the $40,000 held in trust. The court thereafter suggested that the parties revoke their agreement to waive arbitration. When Lacquer would not agree, the court told Feldman that if he wanted to go to arbitration, the court would sign an order to that effect, even if Lacquer objected.

We conclude that the record before us does not justify rescission of the agreement to waive arbitration simply because there was a misunderstanding as to the scope of the waiver. The agreement of the parties was not only memorialized, but the court also confirmed the agreement in its order dated February 20, 2009. That the parties subsequently disagreed on what was discoverable or what evidence would be admissible at the hearing did not justify the trial court’s decision to rescind the agreement. That three-page order clearly sets out the agreement of the parties and it is up to the trial court to then rule on what is discoverable or admissible pursuant to that agreement.

The parties agreed to deposit $40,000 into a trust account to secure Feldman Gale, P.A.’s claim for fees and costs. Furthermore, the court’s order clearly sets forth the basis for the court’s decision and what issues the court reserved for the arbitrator. Thus, the trial court’s determination, on its own, that there was not a “meeting of the minds” between the parties with regards to the arbitration waiver cannot be supported in light of the record before us. Rather, it was up to the trial court to determine what the scope of allowable discovery was in accordance with the terms of the waiver.

The trial court also erred when it rescinded the arbitration agreement without Laquer’s consent. “[Ojnce a party has waived the right to arbitration ..., the party may not reclaim the arbitration right without the consent of his or her adversary.” Green Tree Servicing, LLC v. McLeod, 15 So.3d 682, 687 (Fla. 2d DCA 2009). Neither Feldman Gale, P.A. nor the trial court sought Laquer’s consent prior to repealing the earlier order that waived arbitration on the issue of fees owed. We thus conclude that the rescission of the arbitration waiver without Lacquer’s consent constituted reversible error.

Accordingly, we reverse the trial court’s non-final order in which the court rescinded the arbitration waiver and remand for further proceedings on the issue of fees owed.

Reversed and remanded.


author: HAZOURI, J.

text:
    Kirenia FUENTES, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3770.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 2009.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Kirenia Fuentes pleaded no contest to the charges of possession of cannabis over twenty grams and possession of drug paraphernalia. In the plea, Fuentes reserved her right to appeal her motion to suppress, which was denied by the trial court and dispositive in this matter. Fuentes, as argued in her motion to suppress, contends that the initial investigatory stop, which led to the discovery of the cannabis and drug paraphernalia, was not based on a reasonable suspicion of criminal activity. We reverse the trial court’s denial of the motion to suppress, as the state failed to prove there was the requisite reasonable suspicion needed to make the investigatory stop.

Officer Michelle Keirnan of the City of Plantation Police Department in Broward County, Florida, received a call from police dispatch. The call was in regards to “an anonymous complaint that a white female and white male were punching each other inside an [sie][U]-haul truck.” At the time of the call, Officer Keirnan was two blocks from the location where the alleged incident was occurring. Immediately after receiving the call, Officer Keirnan proceeded to that area. As known by Officer Keir-nan, there is also a U-haul rental facility approximately a half-mile from the area in question.

As Officer Keirnan approached the area where the alleged incident occurred, she stopped at an intersection. She saw a U-haul truck on the opposite side of the intersection moving in the opposite direction. Inside the truck were a female driver and male passenger. She turned her patrol car around and began driving behind the U-haul truck. She then turned on her patrol car’s flashing lights and pulled over the truck. Before she pulled over the truck, Officer Keirnan did not notice any physical altercation going on between the passengers, nor did she observe any erratic driving, speeding, or swerving.

Officer Keirnan exited her patrol ear. Due to heavy traffic, she walked up to the passenger’s side of the truck. At that point, Officer Keirnan “knew in [her] mind [that] whoever was in the passenger side [she] was going to take out of the car to talk to.” She asked the male passenger to step out of the truck and tell her what was going on. Because this was a possible domestic violence situation, Officer Keir-nan wanted to separate the couple and talk to them individually. The female driver, who was Fuentes, remained in the car.

Approximately two minutes later, Officer Ervins G. Hyppolite arrived. Officer Keirnan asked Officer Hyppolite to talk to Fuentes. As Officer Hyppolite walked over to Fuentes, who was still sitting in the truck, Officer Keirnan and the male passenger discussed the alleged domestic violence. The male passenger told Officer Keirnan that he and Fuentes were having a verbal, not physical, altercation. There was no evidence of a physical altercation on the male passenger’s person.

Officer Hyppolite approached the driver’s side of the truck. He asked Fuentes whether there was a physical altercation between her and the male passenger. She said no, and that she was having a verbal altercation with the male passenger. Officer Hyppolite then asked Fuentes to exit the truck and, due to traffic, relocate to its back. As she exited, a clear baggy with a green leafy substance inadvertently fell from her lap. Officer Hyppolite suspected that it was marijuana. As Fuentes started walking toward the back of the truck, Officer Hyppolite seized the baggy.

Upon arriving at the back of the truck, Officer Hyppolite again asked Fuentes if there was a physical altercation. She said no. Officer Hyppolite found no evidence of a physical altercation on Fuentes’s person. Officer Hyppolite then asked Fuentes who the truck belonged to. She said her and the male passenger. Officer Hyppolite obtained Fuentes’s consent to search the truck. Fuentes also signed a consent to search waiver form. Officer Hyppolite subsequently arrested Fuentes, as he believed the substance in the clear baggy was marijuana.

Officer Hyppolite then searched the truck. Underneath the driver’s seat he found another clear bag filled with suspected marijuana. He also found a gallon bag in the back of the vehicle filled halfway with suspected marijuana, as well as two heat lamps commonly used to cultivate marijuana and two brown bags full of small Ziploc bags (the small Ziploc bags were empty). He subsequently field tested the substances found in the two clear bags and the gallon bag. The test was positive for marijuana. The total amount of marijuana found was 175.8 grams.

Fuentes contends the trial court erred by not suppressing the evidence obtained. She argues that the evidence was impermissibly gathered because it was the fruit of an investigatory stop conducted without a reasonable suspicion of criminal activity. We agree.

“[An appellate court] is required to accept the trial court’s determination of disputed issues of fact in a motion to suppress, as the trial court is vested with the authority to determine the credibility of the witnesses and the weight of the evidence. Although [appellate courts] are required to accept the trial court’s determination of the historical facts leading to the search, a defendant is entitled to a de novo review of whether the application of the law to the historical facts establishes an adequate basis for the trial court’s finding of reasonable suspicion or probable cause.”

Manning v. State, 957 So.2d 111, 113-14 (Fla. 4th DCA 2007) (alteration in original) (quoting Lee v. State, 868 So.2d 577, 579 (Fla. 4th DCA 2004) (citing Curtis v. State, 748 So.2d 370 (Fla. 4th DCA 2000))).

Furthermore, “the determinations of a trial court in considering a motion to suppress come to an appellate court clothed with a presumption of correctness,” and “a reviewing court will interpret the evidence and reasonable inferences derived therefrom in a manner most favorable to such ruling.” State v. Pye, 551 So.2d 1237, 1239 (Fla. 1st DCA 1989). Also, “ ‘[o]nce a defendant challenges his arrest and search without a warrant, the burden of proving its validity as a predicate for lawful admissions seized in evidence is upon the state.’ ” Cook v. State, 873 So.2d 624, 624-25 (Fla. 2d DCA 2004) (quoting King v. State, 371 So.2d 120, 122 (Fla. 1st DCA 1978)).

In regards to the requirements for an investigatory stop, law enforcement agents may “stop and detain a person for investigation,” so long as the law enforcement agent has “a reasonable suspicion” that a “person has committed, is committing, or is about to commit a crime. Whether an officer’s suspicion is reasonable is determined by the totality of the circumstances which existed at the time of the stop and is based solely on facts known to the officer before the stop.” Slydell v. State, 792 So.2d 667, 671 (Fla. 4th DCA 2001) (citations omitted). “In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.” Popple v. State, 626 So.2d 185, 186 (Fla.1993). More precisely, a “founded suspicion is one which has a factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer’s knowledge and experience.” State v. Davis, 849 So.2d 398, 400 (Fla. 4th DCA 2003).

The police investigation in this case began with a tip given by an anonymous tipster to police dispatch. When an anonymous tip is involved in instigating an investigatory stop, a court’s consideration of the “totality of the circumstances includes [the] consideration of the nature of the informant.” State v. Evans, 620 So.2d 802, 803 (Fla. 2d DCA 1993).

Because an anonymous tipster’s “basis of knowledge and veracity are typically unknown,” tips they give “justify a stop only once they are ‘sufficiently corroborated’ by police.” State v. Evans, 692 So.2d 216, 218 (Fla. 4th DCA 1997) (quoting Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)).

This requirement of corroboration was exemplified in Baptiste v. State, 995 So.2d 285 (Fla.2008). In that case, a police officer received a radio dispatch stating that an anonymous tipster saw a black male, who was wearing a white T-shirt and blue-jean shorts, waiving a firearm in front of a grocery store. Id. at 288. The officer proceeded to the grocery store, where another police officer had already stopped a black male who was wearing a white T-shirt and blue-jean shorts. Id. The black male was George Baptiste. Based on the informant’s tip, the officers ordered Baptiste to the ground and searched his person, finding a firearm. Id. The Florida Supreme Court held that, given the totality of the circumstances, there was not a reasonable suspicion of activity justifying this investigatory stop. Id. at 296. This was because: (1) the officers “received only an anonymous tip stating that a black male wearing a white T-shirt and blue-jean shorts in a described location was in possession of a gun”; (2) the tipster “did not provide predictive-conduct information indicating any ‘inside’ knowledge about Baptiste, nor did he offer any predictive information that would have corroborated his claim that Baptiste was engaged in illegal conduct”; and (3) “when the officer[s] arrived on scene, [they] w[ere] only able to corroborate innocent details .... [and] Baptiste was not engaged in any unlawful acts, unusual conduct, or suspicious behavior; he was merely walking down the street.” Id.

Furthermore, in Sapp v. State, 763 So.2d 1257, 1258 (Fla. 4th DCA 2000), this court held that an investigatory traffic stop was constitutionally invalid because it was based solely on a “be on the lookout” (“BOLO”) that “was not sufficiently specific to create a founded suspicion that the occupants of the vehicle ... had committed or were about to commit a crime.” Id. The stop was impermissible because the BOLO was “too general to create any legal justification to stop appellant’s car,” as it “provided no information as to the speed, direction, make or model of the car,” and because the officers did not observe the car engaging in “any suspicious conduct or activity consistent with guilt.” Id. at 1259.

Likewise, in L.T.S. v. State, 391 So.2d 695, 695 (Fla. 1st DCA 1980), the First District held that a stop of an automobile was “improper because the police did not have a well-founded or reasonable suspicion” that a crime was being committed. That stop was instituted pursuant to a BOLO advising the police that a robbery was just perpetrated at a liquor store by two white males with curly hair. Id. Within approximately one to two minutes of the BOLO, a police officer, while traveling in his patrol car, observed an automobile traveling on the road near the liquor store. Id. The automobile was traveling away from the store and contained three to four males, two or three of whom had “fairly bushy” hair. Id. The First District held that these circumstances did not create a well-founded suspicion of criminal activity because “[t]he description of the suspects given over the BOLO was lacking in specificity,” and because “there was no indication” that the road the suspects were traveling on was untraveled at the time of the stop or “was one of the few routes available for flight from the scene of the robbery.” Id. at 696.

Similarly, in Kalnas v. State, 862 So.2d 860, 862 (Fla. 4th DCA 2003), this court held that an investigatory stop of a person for the purpose of investigating a burglary was invalid. Although an anonymous tipster in that case gave detailed information of the crime being committed and provided a detailed description of the suspect, this court held that the stop was invalid because “when the police officer arrived on the scene, he was only able to verify the innocent details of identification” and witnessed no other corroborating illegal or suspicious activity. Id. The Fifth District rendered an analogous holding in Nettles v. State, 957 So.2d 689, 689-90 (Fla. 5th DCA 2007), stating that an investigatory stop based on an accurate description of a suspect given by an anonymous tipster alone, and without a corroborating indicator that the suspect was engaged in criminal activity, does not form a well-founded suspicion of criminal activity.

In the instant case, the trial court erred in denying Fuentes’s motion to suppress, as Officer Keirnan did not have a reasonable suspicion of criminal activity when she conducted the investigatory stop. The facts known to Officer Keirnan at the time of the stop were not indicative of criminal activity. Specifically, Officer Keirnan observed a female driver and male passenger in a U-haul truck — as described by the anonymous tipster — but did not corroborate this identification with any criminal behavior, i.e., she did not see the couple physically attacking each other or otherwise engaging in illegal or suspicious activity. Also, and as known by Officer Keir-nan, the place where the truck was pulled over was located near a U-haul rental facility, further negating the premise that these two individuals were the subject of the anonymous tipster’s call, as the couple may have been two other people who rented a U-haul truck at the same time the anonymous tipster informed the police of the possible domestic violence.

We, therefore, reverse the denial of the motion to suppress. Because the motion to suppress is dispositive, we direct the trial court to vacate the conviction and discharge Fuentes.

Reversed and Remanded with Directions.

DAMOORGIAN and CIKLIN, JJ., concur.


author: DAMOORGIAN, J.

text:
    Alfonso CASICA, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4381.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 2009.

      Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

The appellant, Alfonso Casica, was convicted of four counts of armed sexual battery and single counts of kidnapping and tampering with a witness or victim. He was sentenced to concurrent life sentences for the sexual battery charges and concurrent five-year sentences for the kidnapping charge and the tampering charge. We hold that the trial court erred in denying the appellant’s motion for mistrial based on the State’s discovery violation, and we reverse for a new trial on all charges.

The charges against the appellant arose out of an attack on a woman (“the victim”) while she was on her way to work. The victim testified that she boarded a bus around 8:00 a.m. to go to work. A man got on the bus, stared at her, and gave her a dirty look. At trial, the victim identified the appellant as the man on the bus. After getting off the bus, the victim noticed that the appellant was following her. He grabbed her and forced her to walk behind some bushes.

Meanwhile, one of the victim’s co-workers left work at 8:00 a.m. While driving down the street, she witnessed a man holding a woman around the neck and pulling her into the bushes. She called 911 to alert the police. Later in the evening, the co-worker gave a recorded statement to police. She was also shown a photo lineup, from which she identified the appellant as the man who had pulled the woman behind the bushes.

After the appellant pulled the victim behind the bushes, he told her that he would kill her if she tried to scream. He also told her that he had a gun, although the victim testified that she never saw the gun. He then told the victim to get on her knees. He jumped on top of her and started choking her. As the victim lay on the ground, the appellant pulled her jacket over her head so that she could not see anything. He then sexually battered her.

The appellant left the scene of the attack, and the victim got up and ran through the bushes to the road. She saw a truck and screamed for help. Because of the co-worker’s 911 call, the police arrived almost immediately. The victim ran to an officer’s patrol car and got in. Once in the car, she started “hitting everything, the windows, the car seat.” She described herself as going crazy. She was begging for help and was terrified. Although the officers were asking her questions, she could barely talk. Several minutes later, she gave the officers a description of the man who sexually battered her.

When Officer King arrived at the scene, he saw the victim squatting with her face in her hands. She was covered in dirt and grass and appeared to be crying. He placed her in the back of his vehicle. Shortly thereafter, other officers arrived at the scene. Officer Powers saw the victim in the back of the police vehicle and testified that she was extraordinarily upset and had mud all over her clothes and hair. Detective Birkenheuer testified that the victim appeared visibly distraught, her entire head was red, she had bruising and scratches all over her, dirt in her hair and on her face, and was very shaken. She tried to calm the victim down.

Detective Scopa arrived at the scene to find the victim in the back of Officer King’s vehicle. She was visibly shaken, crying and upset. Officer McClaskey also responded to the scene. She observed the victim crying hysterically and shaking. The victim told Detective Scopa and Officer McClaskey that her attacker had a gun, although she did not actually see it.

The officers took the victim to the sexual assault treatment center, where she was examined. Then, she went to the police station, where a detective showed her a photo lineup. She identified the appellant as her attacker in that lineup and again at trial.

A manager from the victim’s workplace testified that the appellant was an employee of her store. He was scheduled to work on the day of the attack, and although he came into the store that day, he did not work. He told the manager that he was not feeling well and needed time off from work.

Detective Heim arrested the appellant at his home later that day. At the police station, he and Detective Scopa spoke with the appellant, who complained of stomach pain and kidney stones. At some point, the appellant was taken to the hospital as a result of his pain. Detective Scopa had a search warrant for the appellant and supervised the collection of his DNA at the hospital.

At trial, nurse Swaby testified that she performed the examination of the victim at the sexual assault treatment center. She took several specimens from her. The victim told Swaby that she was followed from the bus stop and pulled into a bushy area where she was assaulted. The victim denied seeing a weapon, but reported that her attacker threatened her with a gun. Defense counsel objected to these statements, arguing that they were hearsay and did not fit into any hearsay exception. The trial court overruled the objection and admitted the hearsay statements as statements made for purposes of medical diagnosis or treatment.

Heather Whitten, a DNA analyst with the Broward County Sheriff’s Office, testified that she examined a pair of boxer shorts that were taken from the appellant. She took three samples from the shorts to analyze for DNA evidence. All three samples contained the DNA of at least two individuals, and she could not exclude the victim or the appellant as donors. The odds of randomly selecting an unrelated individual who could be included as a contributor to the DNA mixture were as follows: Sample one — 1 in 110; Sample two — 1 in 490; and Sample three — 1 in 1,200.

Dr. Martin Tracey, the State’s DNA expert, testified that he tested the same samples that Whitten tested, but used a different testing method. He opined that it was 250,000 or 260,000 times more likely that the DNA from the boxer shorts belonged to the appellant and the victim than the appellant and an unknown individual. He used the FBI database to reach this conclusion. Defense counsel objected to this testimony and argued that there had been a discovery violation because the State failed to disclose this opinion prior to trial. Defense counsel told the court that Dr. Tracey’s deposition testimony was different than his trial testimony, and moved for a mistrial.

The trial court conducted a Richardson hearing, at which Dr. Tracey testified that he originally performed the DNA analysis using the National Institute of Standards and Technology (NIST) database. Using this database, he testified at his deposition that it was 800,000 times more likely that the DNA on the boxer shorts belonged to the appellant and the victim than the appellant and some unknown person. After his deposition, the prosecutor sent Dr. Tracey a fax asking him to recalculate using the FBI database so that there would not be any problems with the calculation at trial. Dr. Tracey informed the court that the NIST database has not been used as frequently in criminal DNA cases as the FBI database, so he and the prosecutor decided it would be a good idea to do a calculation based on the FBI database. Dr. Tracey sent his new calculation back to the prosecutor. The prosecutor admitted that she did not send the new calculation to defense counsel. She could not recall whether she had a conversation with defense counsel about the new calculation.

Defense counsel told the court that he was sure that he had never received the new calculation. He said that his strategy was to move to strike Dr. Tracey’s original testimony because he believed the DNA analysis using the NIST database was inadmissible. He did not make an opening statement in part so that he could challenge Dr. Tracey’s testimony when he took the witness stand. If the court struck Dr. Tracey’s testimony, the jury would be able to consider only Ms. Whitten’s DNA calculations, which were much more favorable to the defense than Dr. Tracey’s calculation. He believed that he could no longer challenge Dr. Tracey’s testimony because his new calculation based on the FBI database was admissible.

The trial court ruled that there had been a discovery violation, although the violation was not willful. The court offered to adjourn the proceedings to give defense counsel a chance to re-depose Dr. Tracey. Defense counsel rejected this offer, telling the court that re-deposing Dr. Tracey would be futile because he would need to hire an expert before he could effectively challenge Dr. Tracey’s testimony. He explained that he had not yet hired an expert because he believed the court would strike Dr. Tracey’s original testimony. The court denied the motion for mistrial.

The appellant argues that the trial court erred in denying his motion for mistrial because he was proeedurally prejudiced by the State’s discovery violation. The State does not dispute that it committed a discovery violation, but argues that the violation was harmless.

“When the State’s failure to comply with the rules of discovery is brought to the court’s attention, the court must conduct a Richardson hearing to determine if that failure has prejudiced the defendant.” Barrett v. State, 649 So.2d 219, 221-22 (Fla.1994). The inquiry at that hearing is “whether there is a reasonable possibility that the discovery violation ‘materially hindered the defendant’s trial preparation or strategy.’ ” Scipio v. State, 928 So.2d 1138, 1150 (Fla.2006) (quoting State v. Schopp, 653 So.2d 1016, 1020 (Fla.1995)). An analysis of procedural prejudice “considers how the defense might have responded had it known about the undisclosed piece of evidence and contemplates the possibility that the defense could have acted to counter the harmful effects of the discovery violation.” Id. at 1149. It is immaterial whether the discovery violation would have made a difference to the fact finder in arriving at the verdict. Id. at 1150.

A discovery violation is harmless only if an appellate court can determine, beyond a reasonable doubt, that the defense was not proeedurally prejudiced. Id. Because it is the State’s burden to show that the error was harmless, the State must show in the record that the defendant was not prejudiced by the discovery violation. Schopp, 653 So.2d at 1020.

We hold that the State did not meet its burden of showing that the discovery violation was harmless. Although we agree with the trial court that the violation was not willful, the State’s failure to disclose the change in Dr. Tracey’s testimony materially hindered the appellant’s trial preparation. The appellant’s trial strategy with regard to Dr. Tracey would have been materially different had he known of the change. Instead of moving to strike Dr. Tracey’s testimony, the appellant’s counsel stated that he would have hired an expert witness to rebut that testimony. While the appellant might have hired an expert regardless of the discovery violation, he would not have been able to fully prepare that expert for trial without knowledge that Dr. Tracey used the FBI database, rather than the NIST database, for the DNA analysis. See Scipio, 928 So.2d at 1145 (noting that a party can hardly prepare for an expert opinion that it does not know about).

Re-deposing Dr. Tracey in the middle of trial, the trial court’s proposed solution, would not have been adequate to resolve the State’s discovery violation. The appellant still would have been without an expert witness to rebut Dr. Tracey’s testimony. This was especially harmful because the primary theory of the appellant’s defense was misidentification. Accordingly, we reverse the appellant’s convictions and remand for a new trial on all charges.

The appellant raises several additional issues. First, he argues that the trial court erred in admitting hearsay statements made by the victim about the attack, especially the statement that her attacker had a gun. We hold that the statement the victim made to nurse Swaby that her attacker threatened her with a gun was erroneously admitted because it was not reasonably pertinent to the victim’s medical diagnosis or treatment. See Conley v. State, 620 So.2d 180, 183-84 (Fla.1993). However, the error was harmless because that statement was cumulative to the victim’s testimony that the appellant told her he had a gun. See Torres-Arboledo v. State, 524 So.2d 403, 408 (Fla.1988). It was also cumulative to statements the victim made to Detective Scopa and Officer McClaskey shortly after the attack. We hold that these statements, which came in through the officers’ testimonies, were properly admitted into evidence as excited utterances. See id.; see also § 90.803(2), Fla. Stat. (2007).

The appellant’s argument that the trial court gave the jury an erroneous instruction on the charge of tampering with a victim is well-taken. The court improperly combined the elements of subsections (e) and (a) of section 914.22(1), Florida Statutes (2005). The appellant was charged with violating only subsection (e) and the jury .should have been instructed with the elements of that particular subsection.

We find no merit to the appellant’s final two arguments. The trial court did not abuse its discretion in giving Florida Standard Criminal Jury Instruction 3.9(e) regarding the appellant’s out-of-court statements. See Charles v. State, 945 So.2d 579, 582 (Fla. 4th DCA 2006) (generally, the trial court’s decision to give a requested jury instruction is reviewed for an abuse of discretion). Nor did the trial court err in denying the appellant’s motion for judgment of acquittal on the charge of tampering with the victim. See Burkell v. State, 992 So.2d 848, 851 (Fla. 4th DCA 2008) (the standard for reviewing a trial court’s ruling on a motion for judgment of acquittal is de novo). The State presented sufficient evidence from which the jury could have rationally found the elements of the crime beyond a reasonable doubt. See Horne v. State, 997 So.2d 1262, 1264 (Fla. 4th DCA 2009). Nevertheless, we also reverse the appellant’s conviction for tampering with the victim and remand for a new trial because of the State’s discovery violation.

Reversed and Remanded for a new trial on all charges.

MAY and CIKLIN, JJ., concur.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).

      . The State violated Florida Rule of Criminal Procedure 3.220(j) by failing to disclose the change in Dr. Tracey's opinion.