text:
    Robert H. SANGSTER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4733.
    District Court of Appeal of Florida, First District.
    Nov. 9, 2009.
    Robert Sangster, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(A).

VAN NORTWICK, PADOVANO, JJ., and BROWNING, JR., EDWIN B., Senior Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Crispen HART, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-2582.
    District Court of Appeal of Florida, First District.
    Nov. 9, 2009.

      Crispen Hart, pro se, Petitioner.
    Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

VAN NORTWICK, PADOVANO, JJ, and BROWNING, JR, EDWIN B, Senior Judge, concur.


text:
    Christopher J. THOMPSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4308.
    District Court of Appeal of Florida, First District.
    Nov. 10, 2009.
    Christopher J. Thompson, pro se, Petitioner.
    Bill McCollum, Attorney General, and Giselle Denise Lylen and Brooke Poland, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Christopher J. Thompson is hereby afforded a belated appeal of the order of the Circuit Court for Duval County dated April 21, 2009, denying his amended motion for postconviction relief in that court’s case number 16-1996-CF-004030-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court, who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

BARFIELD, DAVIS, and ROBERTS, JJ, concur.


text:
    Thomas Scott KRESGE, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-2746.
    District Court of Appeal of Florida, First District.
    Nov. 10, 2009.

      William J. Sheppard, D. Gray Thomas and Bryan E. DeMaggio, Sheppard, White, Thomas & Kachergus, P.A., Jacksonville, for Appellant.
    Bill McCollum, Attorney General and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Thomas Kresge appeals the trial court’s summary denial of his postconviction motion alleging- that counsel ineffectively failed to file a motion to suppress his confession. We reverse.

Following an officer’s warrantless entry into the appellant’s residence, the appellant confessed to unlawful sexual activity with a minor. At trial, defense counsel failed to file a motion to suppress the appellant’s confession as fruit of the poisonous tree. See State v. Rheiner, 297 So.2d 130, 134-35 (Fla. 2d DCA 1974). The appellant argues that the outcome of his case would have been different had counsel filed the motion. As the State concedes, the trial court did not attach record portions conclusively refuting the appellant’s claim.

Because the record now before us fails to contain the required showing, we reverse the trial court’s order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

REVERSED AND REMANDED for further proceedings.

BARFIELD and CLARK, JJ., and BROWNING, JR., EDWIN B., Senior Judge, concur.


text:
    Larry L. ARMSTRONG, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-2007.
    District Court of Appeal of Florida, First District.
    Nov. 10, 2009.

      Larry L. Armstrong, pro se, Appellant.
    Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant previously appealed the trial court’s order summarily denying his motion for postconviction relief and supplemental motions thereto, which together raised six claims for relief. In Armstrong v. State, 995 So.2d 597 (Fla. 1st DCA 2008), this court reversed five of those claims as unrefuted by the record. Appellant now appeals the trial court’s order summarily denying the five claims. We reverse on two of those grounds as a result of the limited record before us.

Appellant argued five grounds of ineffective assistance of counsel below. To demonstrate ineffective assistance of counsel, Appellant must show that (1) counsel’s performance was deficient; and (2) there is a reasonable probability that the outcome of the proceeding would have been different had counsel not performed defi-ciently. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

We affirm without further .comment the trial court’s summary denial of Appellant’s first three grounds of ineffective assistance of counsel. Because the record does not conclusively show that Appellant is not entitled to relief on the remaining two grounds, however, we are constrained to reverse.

In Appellant’s fourth ground alleging ineffective assistance of counsel, he argued below that counsel ineffectively failed to object to the introduction at trial of an audiotape that the State did not provide during discovery. Appellant alleged that his counsel’s failure to object prejudiced his case because the audiotape refutes his claim of self defense. The record before us does not contain any evidence refuting Appellant’s claim.

In his fifth ground, Appellant argued that counsel ineffectively failed to inform him that the State had an incriminating audiotape prior to rejecting the State’s plea offer. See Cottle v. State, 733 So.2d 963, 969 (Fla.1999). The trial court did not comment on Appellant’s claim but, rather, attached the State’s response, in which the Assistant State Attorney explained, “I recall no such offer.” No evidence in the record, however, refutes Appellant’s claim.

Accordingly, we reverse the trial court’s summary denial of Appellant’s fourth and fifth grounds of ineffective assistance of counsel. Because the trial court has twice denied Appellant’s motion for postconviction relief, it should hold an evidentiary hearing on these claims and grant relief, if required.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions consistent with this opinion.

HAWKES, C.J., BENTON and THOMAS, JJ, concur.


author: RAMIREZ, C.J.

text:
    GENERAL ASPHALT COMPANY, INC., a Florida Corporation, for the use and benefit of Liberty Mutual Insurance Company, a Foreign Corporation; and Liberty Mutual Insurance Company, a Foreign Corporation, on its own behalf, Appellants, v. BOB’S BARRICADES, INC., Appellee.
    No. 3D08-3035.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2009.
    Rehearing Denied Dec. 15, 2009.
    Restani, Dittmar & Hauser, and Helen Ann Hauser, for appellants.
    Wicker, Smith, O’Hara, McCoy & Ford, and Shelley H. Leinicke, for appellee.

      Before RAMIREZ, C.J., and LAGOA and SALTER, JJ.
   RAMIREZ, C.J.

General Asphalt Company, Inc. and Liberty Mutual Insurance Company appeal the trial court’s entry of final summary judgment in favor of Bob’s Barricades. We affirm the trial court’s order because Bob’s Barricades, General Asphalt’s subcontractor, owed no duty to indemnify General Asphalt.

This case involves a dispute over insurance coverage arising from a tort liability suit in which an injured motorist sued General Asphalt and Bob’s Barricades. The injured motorist sued to recover for injuries she received when she lost control of her car along the road General Asphalt and Bob’s Barricades worked on.

In accordance with the contract between General Asphalt and Bob’s Barricades, Bob’s Barricades was to add General Asphalt as an additional insured to its insurance coverage for any suits arising out of Bob’s Barricades duties under the contract. In her complaint, the injured motorist listed causes of action against both General Asphalt and Bob’s Barricades.

Bob’s Barricades and its primary insurance carrier, Lexington Insurance Company, reached a settlement agreement with the injured motorist for $1 million. In turn, the injured motorist released Bob’s Barricades not only from the direct negligence claims against it, but also for any vicarious liability anyone else might have that resulted from Bob’s Barricades actions. The injured motorist still preserved her claims against General Asphalt for any direct negligence claims she had against it.

General Asphalt eventually settled with the injured motorist for $7.25 million, a sum that included Liberty Mutual’s $1 million primary contribution limit plus contributions from both General Asphalt and Bob’s Barricades excess insurance carriers. After this, General Asphalt’s excess insurer, Great American Insurance Company, brought an action in federal court against Bob’s Barricades primary and excess insurer, National Union Fire Insurance, seeking to recover Great American’s contributions to the settlement. See Great American Ins. Co. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 574 F.Supp.2d 1294 (S.D.Fla.2008), 339 Fed.Appx. 896 (11th Cir.2009). The Southern District of Florida concluded that Great American could not recover against Lexington or National because Lexington did not owe General Asphalt a duty to defend or indemnify.

General Asphalt and Liberty filed claims against Bob’s Barricades for alleged breach of contract for failure to defend and indemnify General Asphalt in the liability claim by the injured motorist. Following the results in the federal court proceedings, Bob’s Barricades moved for summary judgment. The trial court found that Bob’s Barricades satisfied its contractual duties to General Asphalt and granted summary judgment in favor of Bob’s Barricades.

Our standard of review for the trial court’s summary judgment order is de novo. Florida Dep’t of Rev. v. New Sea Escape Cruises, Ltd., 894 So.2d 954 (Fla.2005) (“A legal matter [is] subject to a de novo standard of review.”).

We find persuasive, but not controlling, the Southern District’s determinations as to what duties, if any, were owed in this case. After looking at the facts of the case, we agree with the trial court that Bob’s Barricades did not owe General Asphalt a duty to indemnify.

Looking at the complaint filed by the injured motorist in the underlying case, we conclude that Bob’s Barricades and Lexington had no duty to indemnify General Asphalt. The injured motorist alleged in her complaint separate counts for each defendant and did not include a claim for vicarious liability against General Asphalt for the actions of Bob’s Barricades. Florida law is clear that in order to pursue a vicarious liability claim, the claimant must specifically plead it as a separate cause of action. See Goldschmidt v. Holman, 571 So.2d 422 (Fla.1990). Under the terms of Bob’s Barricades contract with General Asphalt, Bob’s Barricades had a duty to indemnify General Asphalt for any claims General Asphalt might face arising from Bob’s actions. In other words, Bob’s Barricades’ had a duty to indemnify General Asphalt for any vicarious liability claims. However, the injured motorist failed to allege any vicarious liability claims in her complaint.

Further, we find that even if the injured motorist did allege vicarious liability in her complaint, Bob’s Barricades met its obligations to General Asphalt when it reached the $1 million settlement with the injured motorist. As part of the settlement, the injured motorist also agreed to waive not only any direct negligence claims against Bob’s Barricades, but also any vicarious liability claims she could bring resulting from the incident. Bob’s Barricades thus insured that General Asphalt would not face any claims resulting from Bob’s Barricades actions. As a result, the only issues that remained unresolved when General Asphalt, Liberty, and Great American settled were the injured motorist’s claims against General Asphalt for its own negligence.

For the reasons stated above, we affirm the lower court’s entry of summary judgment in Bob’s Barricades favor.

Affirmed.


author: COPE, J.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. HYMA MEDICAL CENTER, INC., as assignee of Sadys Lopez, Respondent.
    No. 3D09-2046.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2009.

      Seipp & Flick, Douglas H. Stein, Miami, for petitioner.
    Wasson & Associates and Annabel C. Majewski, Miami; Barakat, Prempeh & Jacobs and Ayala Prempeh and Jabari Prempeh, II, Miami, for respondent.
    Before COPE, GERSTEN and LAGOA, JJ.
   COPE, J.

This is a petition for second-tier certio-rari in a case involving the denial of personal injury protection (“PIP”) benefits. We grant the petition.

Sadys Lopez is an insured under PIP coverage issued by petitioner State Farm Mutual Automobile Insurance Company. According to the amended complaint, she was in an automobile accident and obtained treatment from Hyma Medical Center, Inc., to whom she assigned her PIP benefits.

Hyma submitted its medical bills to State Farm. State Farm paid nothing, taking the position that the bills were not reasonable, related, or necessary.

Hyma filed suit in county court and the court entered summary judgment in Hyma’s favor. State Farm appealed to the appellate division of the circuit court. In its answer brief, Hyma conceded that the reasons which had led to the entry of the county court judgment were invalid.

Hyma argued, however, that the judgment could be upheld on a “right-for-wrong-reason” basis. See Dade County School Board v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999). Hyma argued that the affidavit submitted by State Farm’s reviewing physician was invalid. Hyma contended that the reviewing physician’s affidavit was not “factually supported by the examination and treatment records [of the insured].” § 627.736(7)(a), Florida Statutes (2008). The appellate division affirmed without opinion and State Farm has petitioned for second-tier certio-rari.

This petition raises one of the issues addressed by this court’s recent opinion in United Automobile Ins. Co. v. Santa Fe Medical Center, 21 So.3d 60 (Fla. 3d DCA 2009) (en banc). This case is a “denial” case, where the insurer never paid any of the claims. A denial case is governed by paragraph 627.736(4)(b), Florida Statutes. As explained in Santa Fe, paragraph (4)(b) “pertains to circumstances where ‘the insurer has either reduced, omitted, or declined’ payment of PIP claims that are reasonable, necessary, and related .... ” 21 So.3d at 63. See also Partners in Health Chiropractic v. United Automobile Ins. Co., 21 So.3d 858 (Fla. 3d DCA 2009).

By contrast, paragraph 627.736(7)(a), Florida Statutes, is applicable in a “withdrawal” case. In a withdrawal case the insurer has made payments but then seeks to withdraw all future payments for the same injury. In that situation paragraph (7)(a) “sets forth the necessary requirements that an insurer must satisfy before it may withdraw future PIP benefits.” Santa Fe, 21 So.3d at 63.

We conclude that the circuit court appellate division departed from the essential requirements of law. The appellate division accepted Hyma’s argument that State Farm’s reviewing physician’s affidavit did not comply with that part of paragraph (7)(a) that requires the reviewing physician’s report to be “factually supported by the examination and treatment records[.]” The problem is that the statutory language just quoted applies to a withdrawal case which is governed by paragraph (7)(a), but this is a denial case. Paragraph (7)(a) is inapplicable. That being so, the summary judgment cannot be upheld on the right-for-wrong-reason analysis offered by Hyma.

We therefore quash the opinion of the appellate division of the circuit court. The case must be returned to the county court for further proceedings under paragraph 627.736(4)(b), Florida Statutes.

Petition granted.


text:
    Wallace J. PORTER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1911.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2009.
    Wallace J. Porter, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, SHEPHERD, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Akers v. State, 890 So.2d 1257, 1259 (Fla. 5th DCA 2005).


text:
    Cesar DEL RIO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-482.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2009.

      Cesar Del Rio, in proper person.
    Bill McCollum, Attorney General, and Nicholas A. Merlin, Assistant Attorney General, for appellee.
    Before WELLS, SHEPHERD, and CORTINAS, JJ.
   PER CURIAM.

Appellant, Cesar Del Rio, appeals a trial court order denying Ms motion for post-conviction relief. Del Rio argues his counsel was ineffective for failing to investigate the proper jail credit accumulated by him and, as a result, his sentence was longer than the statutorily permitted maximum. We treat the order on appeal as one taken from the denial of a motion to correct illegal sentence under Florida Rule of Appellate Procedure 3.800(a).

The State commendably concedes the possibility Del Rio’s total concurrent sentences for the third-degree felonies or aggravated stalking, § 784.048(3), Fla. Stat. (2004), and threatening a public servant, § 838.021(3)(b), Fla. Stat. (2004), exceed the statutory maximum.

We reverse and remand to the trial court for further proceedings. Upon remand, the trial court should consider the accurate calculation of the number of days Del Rio has served to determine whether the sentence, in fact, exceeds the five-year statutory maximum.

Reversed and remanded with directions.


text:
    Elliott McKNIGHT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2529.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2009.
    Elliott McKnight, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, GERSTEN and SUAREZ, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Defendant-appellant Elliott McKnight alleges that he signed a written plea agreement whereby he pled guilty to eight counts of attempted sexual battery on a minor. According to the defendant, the written plea agreement provided for a sentence of ten years.

When the case came before the judge for sentencing, the defendant was sentenced to ten years of incarceration followed by ten years of probation. The defendant alleges that this sentence exceeded the sentence specified by the written plea agreement. The postconviction record now before us contains the plea colloquy but does not contain the written plea agreement.

On appeal from an order summarily denying a motion for postconviction relief, this court is required to reverse unless the postconviction record conclusively shows that the defendant is not entitled to any relief. Fla. R.App. P. 9.141(b)(2)(D). We therefore reverse the order now before us and remand for further proceedings. If the trial court again denies relief, it shall attach record excerpts conclusively showing that the defendant is not entitled to any relief.

Reversed and remanded for further proceedings consistent herewith.

       For earlier proceedings, see McKnight v. State, 964 So.2d 803 (Fla. 3d DCA 2007).


author: GRIFFIN, J.

text:
    Juan ACEVEDO, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-9.
    District Court of Appeal of Florida, Fifth District.
    Nov. 13, 2009.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Juan Acevedo [“Acevedo”] appeals his conviction of burglary of a dwelling, dealing in stolen property, and grand theft. Acevedo argues that the trial court erred by denying his motion to suppress statements that he made to law enforcement. He contends that law enforcement gave a defective Miranda warning by failing to advise him of his right to have counsel present during questioning. He is correct that, under the decision of the Florida Supreme Court in State v. Powell, 998 So.2d 531 (Fla.2008), cert. granted, — U.S. -, 129 S.Ct. 2827, 174 L.Ed.2d 551 (2009), the Miranda warning he was given was defective because he was told only that he had a right to counsel, not that he had a right to counsel before being interrogated and during interrogation. 998 So.2d at 535; see also Modeste v. State, 4 So.3d 1217 (Fla.2009) (quashing decision of this Court in State v. Modeste, 987 So.2d 787 (Fla. 5th DCA 2008) (en banc)).

In an amended three-count information, the State charged Acevedo with burglary of a dwelling, dealing in stolen property, and grand theft of property valued at $300 or more but less than $20,000. Prior to trial, Acevedo filed an amended motion to suppress admissions, confessions, and statements. As grounds for suppression, Acevedo asserted that his waiver of Miranda rights was involuntary because he was intoxicated at the time of waiver. The trial court conducted a hearing on Acevedo’s motion to suppress, during which it heard testimony from Detective Alfonso Williams [“Detective Williams”] and Acevedo.

According to Detective Williams, he investigated Acevedo in relation to the burglary since an initial victim report indicated that Acevedo had prior knowledge that the victims would be away from their home. Detective Williams explained that, upon learning that Acevedo had pawned a Fossil watch, he met one of the victims at the pawn shop, who identified the Fossil watch as belonging to her husband.

Detective Williams stated that he eventually located Acevedo at his mother’s house. He testified that, with permission and direction from Acevedo’s mother, he and another officer entered the home and proceeded to Acevedo’s bedroom. He stated that Acevedo was “sitting on the bed in the process of getting up” when they entered the bedroom. Detective Williams testified that he informed Acevedo that he was a suspect in a burglary case and asked if he would “cooperate and go back to the police department for an interview.” Detective Williams confirmed that he also informed Acevedo that he did not have to go to the police department. Detective Williams stated that Acevedo agreed to cooperate.

According to Detective Williams, once at the police department, he escorted Acevedo to an interrogation room. Acevedo asked whether he was going to be placed under arrest and whether he was going to jail, to which Williams replied that he was not sure. He then conducted an interview of Acevedo.

The audiotape of the interview was entered into evidence during the hearing and published for the trial court. The following exchange took place between Detective Williams and Acevedo concerning Miranda rights:

Q. Okay. This is in regards to Alta-monte Springs case number 2008-1416. The time is ten o’clock.
Mr. Acevedo, before we get started I’m going to advise you of your rights, and you have a right to remain silent. Anything you say will be used against you in court as evidence. You have a right to an attorney. If you can’t afford one, one will be appointed to you. Do you understand your rights?
A. Yes, sir.
Q. I appreciate your cooperation, for you willing to talk. Thank you for that. What I’m going to do here is get you to sign this Miranda card right here, just basically saying that you’re willing to talk to me. Put your signature there. And today’s date is the 20th, put today’s date the 20th.

Thereafter, during the course of the interview, Acevedo confessed to having broken into the victims’ home, to having taken two DVD players, DVDs, a Fossil watch, and some prescription pills, and to having pawned the Fossil watch. Detective Williams repeatedly asserted that Acevedo took other missing items, but Acevedo repeatedly denied having taken the other missing items.

Detective Williams testified about the manner in which he Mirandized Acevedo as follows:

Q. Now, we heard you read him Miranda on the interview, and do you use a card when you read Miranda?
A. Yes.
Q. Did you use a card that day?
A. Yes.
Q. Is it the same card that you always use?
A. Yes, ma’am.
Q. Okay. And did you have him sign the card after you read it to him?
A. That is correct.
Q. Do you have his signed card with you today?
A. No, ma’am.
Q. And why is that?
A. Somewhere during the transition from upstairs in the investigation room to the records vault it got misplaced. We don’t have the card.
Q. Okay. So you don’t have it anymore?
A. No, ma’am.
Q. But do you use the same Miranda card every time you Mirandize someone?
A. Yes, ma’am.

The State attempted to enter into evidence an unsigned example of the Miranda card that is used by the police department. Defense counsel objected to the admission of the unsigned Miranda card, and the trial court sustained defense counsel’s objection. On cross-examination, Detective Williams testified that he did not read verbatim from the Miranda card but rather summarized the rights.

The issue presented in this case has been the subject of two recent decisions of the Florida Supreme court, State v. Powell and Modeste v. State. The Supreme Court of the United States has accepted jurisdiction of the Powell decision, which may resolve the issue. Meanwhile, we must apply Powell. The Miranda warning given to Acevedo does not meet the requirements of Powell.

A harmless error analysis does apply to the “erroneous admission of statements obtained in violation of Miranda.” Powell, 998 So.2d at 541-42. In order for the error to be harmless, an appellate court “must find that beyond a reasonable doubt the admission of the confession did not affect the jury’s verdict.” Id. at 542. Acevedo contends that the record evidence, absent his statements, does not establish guilt beyond a reasonable doubt for any of the charged crimes. Acevedo’s statements consisted of him confessing to having broken into the victims’ house and taken DVD players, DVDs, a Fossil watch, and prescription pills as well as to having pawned the Fossil watch. Absent Acevedo’s statements, the record evidence indicates that Acevedo (1) knew the victims (2) had been to the victims’ home on multiple occasions, (3) had done some work for the victims, (4) knew that the victims were going to be out of town, and (5) had pawned a Fossil watch, which was identified by the victims’ as one of the items that had been taken from their home. Given the nature of this evidence, it is impossible to say that Acevedo’s statements did not affect the jury’s verdict. Although there may be sufficient evidence to support a conviction without Acevedo’s statements, the erroneous admission of Acevedo’s statements obtained in violation of Miranda was not harmless error.

REVERSED and REMANDED.

MONACO, C.J., and TORPY, J., concur.

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

      . We hold that when an individual is adequately advised of his right to remain silent, anything he says can be used against him, he has the right to an attorney, and if he cannot afford an attorney one will be appointed for him, Miranda does not require that the suspect also be expressly informed he has the right to have counsel present during interrogation.

        State v. Modeste, 987 So.2d at 791.


author: LAWSON, J.

text:
    Michael SPICER, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-3561.
    District Court of Appeal of Florida, Fifth District.
    Nov. 13, 2009.

      James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Michael Spicer, Panama City, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   LAWSON, J.

Michael Spicer appeals from his aggravated battery conviction and fifteen-year prison sentence entered following a jury’s verdict of guilty on the charge. Finding ineffective assistance of counsel apparent on the face of the record, we reverse for a new trial. See, e.g., Bruno v. State, 807 So.2d 55, 63 n. 14 (Fla.2001) (“A claim of ineffectiveness can properly be raised on direct appeal only if the record on its face demonstrates ineffectiveness.”).

Spicer’s sole defense at trial was self-defense. He took the stand himself to testify that he punched the victim only in self-defense after the victim attacked him. Spicer’s counsel also called another eyewitness, Spicer’s girlfriend, who corroborated this defense. The law is clear that raising self-defense does not shift the burden of proof to the defendant. Rather, “[o]nce a defendant makes a prima facie showing of self-defense, the State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense.” Fields v. State, 988 So.2d 1185, 1188 (Fla. 5th DCA 2008) (citing Fowler v. State, 921 So.2d 708, 711 (Fla. 2d DCA 2006)); see also Brown v. State, 454 So.2d 596, 598 (Fla. 5th DCA 1984) (‘While the defendant may have the burden of going forward with evidence of self-defense, the burden of proving guilt beyond a reasonable doubt never shifts from the State, and this standard broadly includes the requirement that the State prove that the defendant did not act in self-defense beyond a reasonable doubt.”) (citations omitted).

Spicer’s counsel was obviously unaware of the law on this point, and repeatedly explained to the jury in his closing argument that it was Spicer’s burden to prove self-defense. Compounding this mistake, Spicer’s lawyer proposed an old standard jury instruction which also erroneously stated that self-defense had to be “proved beyond a reasonable doubt.” This was the instruction read to the jury.

Because we can conceive of no possible strategy on this record that could justify Spicer’s lawyer shifting the burden of proof to his client as to the only real issue at trial, we find this to be one of those rare cases where counsel’s deficient performance is clear from the face of the record on direct appeal. We also find prejudice apparent on the face of the record. To show prejudice in this context, a defendant “need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.” Strickland v. Washington, 466 U.S. 668, 693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Rather, prejudice is demonstrated where there is a “reasonable probability” that counsel’s deficient performance altered the outcome of the trial. Id. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. A court’s concern should be “whether the result of a particular proceeding is unreliable because of a breakdown in the adversarial process.” Downs v. State, 453 So.2d 1102, 1108-09 (Fla.1984). We have carefully reviewed this record. Clearly, the State presented evidence from which a jury could have rejected the self-defense claim beyond a reasonable doubt. However, this was Spicer’s only defense at trial. And, the defense was supported by testimony that, if believed, could have been sufficient to create a reasonable doubt in the minds of jurors properly instructed on the law. Therefore, we find that counsel’s burden-shifting error caused a breakdown in the adversary process sufficient to undermine our confidence in the outcome of this trial.

REVERSED AND REMANDED.

MONACO, C.J., and JACOBUS, J., concur.

      . The erroneous instruction was replaced nine months prior to Spicer's trial by an amended version which struck the offending language. See In re Standard Jury Instructions in Criminal Cases (No. 2006-3), 947 So.2d 1159 (Fla.2007). As explained in Fields, the old instruction also contained a correct statement regarding the burden of proof on this issue, but was defective because it required the jury to " 'choose between two contradictory standards!)]' ” one of which erroneously shifted the burden of proof to the defendant. Fields, 988 So.2d at 1189 (quoting Murray v. State, 937 So.2d 277, 280 (Fla. 4th DCA 2006)). In Fields, we found fundamental error when this instruction was given without objection. Because it was Spicer's attorney who affirmatively requested the instruction in this case, however, we have not addressed the issue using a fundamental error analysis. See Caldwell v. State, 920 So.2d 727, 732 (Fla. 5th DCA 2006) ("An instructional mistake does not rise to the level of fundamental error when defense counsel affirmatively requests the deletion or alteration of the jury instruction that subsequently forms the basis of the requested relief in the appellate court."); Weber v. State, 602 So.2d 1316, 1319 (Fla. 5th DCA 1992) ("After a guilty verdict has been returned based on [a] requested instruction, defense counsel cannot be allowed to change legal positions in midstream and seek a reversal based on that error. Principles of estoppel, waiver, and invited error, forestall the possible success of such a ruse.”) (footnotes and citations omitted).


author: WALLACE, Judge.

text:
    Koris William JENNINGS, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-137.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 2009.

      James Marion Moorman, Public Defender, and Brad Permar and Bruce P. Taylor, Assistant Public Defenders, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Koris William Jennings appeals the revocation of his probation and the resulting sentences. Mr. Jennings challenges the trial court’s findings that he willfully and substantially violated the conditions of his probation. In addition, he argues that the trial court erred in sentencing him. Mr. Jennings’ arguments about the legality of his sentences are without merit, and we reject them without further comment. However, we reverse the revocation of Mr. Jennings’ probation and remand for further proceedings.

THE FACTS AND PROCEDURAL BACKGROUND

Mr. Jennings was originally sentenced in 1994 to two consecutive terms of ten years’ imprisonment arising from his conviction on two second-degree felony charges. He was released to probation on April 24, 2007, and first met his probation officer on June 7, 2007. The probation officer testified that he reviewed the terms and conditions of Mr. Jennings’ probation with him. On June 20, 2007, Mr. Jennings was stopped by a Fort Myers police officer for running a red light. The officer cited him for the violation of a traffic control device and also issued a citation because the borrowed car that Mr. Jennings was driving had a crack in the windshield.

In July 2007, Mr. Jennings submitted a required monthly report to his probation officer. The report form contained the following question: “Have you been arrested or had any contact with law enforcement during the last month?” Mr. Jennings answered this question by checking the box indicating a negative response.

On October 1, 2007, Mr. Jennings’ probation officer filed an affidavit alleging that Mr. Jennings had violated Condition 1 of his probation “by failing to make a full and truthful report to the probation officer on the form provided for that purpose.” The ground for this violation was that Mr. Jennings “falsely report[ed] that he had no contact with law enforcement [during] June.” The affidavit also alleged that Mr. Jennings had violated Condition 5 of his probation “by failing to live and remain at liberty without violating any law by committing the criminal offense of Driving While License Suspended/Revoked on 09/21/2007.” We address the two alleged violations in reverse order.

CONDITION 5

At the revocation hearing, Mr. Jennings testified that he did not learn that his license had been administratively suspended until several weeks after his visit to his probation officer on September 21, 2007, and had never received formal notification of this fact from the Department of Motor Vehicles. The State did not introduce any evidence to contradict Mr. Jennings’ testimony on this issue. “[R]evoking probation based partly on a purported violation that was not proved or admitted constitutes fundamental error.” Odom, v. State, 15 So.3d 672, 678 (Fla. 1st DCA 2009). Because the State failed to prove that Mr. Jennings willfully violated Condition 5 by driving with a suspended license, the trial court erred in finding that Mr. Jennings had violated Condition 5 of his probation.

CONDITION 1

Condition 1 requires that the probationer provide “a full and truthful report” to the probation officer. The report is accomplished by filling out a form. The form contains a question asking whether the probationer has had any contact with law enforcement during the reporting period. Mr. Jennings’ probation officer testified at the revocation hearing that the reporting period for the form submitted by Mr. Jennings in July 2007 encompassed a reporting period covering the date that Mr. Jennings received his traffic citations. The probation officer also testified that Mr. Jennings had answered “No” to the question about contact with law enforcement. We can understand how, in preparing his monthly report, a person on probation for two serious felonies might overlook a traffic stop for running a red light. However, Mr. Jennings’ explanation for omitting to mention the June traffic stop in his monthly report was unconvincing. Thus the trial court’s finding that Mr. Jennings had violated Condition 1 by failing to submit “a full and truthful report” was supported by competent, substantial evidence.

CONCLUSION

On appeal from a trial court’s order revoking probation, the applicable standard of review is abuse of discretion. See State v. Carter, 835 So.2d 259, 262 (Fla.2002). Whether Mr. Jennings committed a willful and substantial violation of Condition 1 of his probation by falsely reporting that he had no contact with law enforcement during the June 2007 reporting period may be arguable. However, we are unable to conclude that the trial court abused its discretion in so finding.

Because we cannot determine whether the trial court would have revoked Mr. Jennings’ probation based on the violation of Condition 1 alone or whether the trial court would have imposed the same sentence based on this violation alone, we reverse the revocation of Mr. Jennings’ probation and the resulting sentences and remand for further proceedings. On remand, the trial court must consider whether Mr. Jennings’ violation of Condition 1— standing alone — warrants the revocation of his probation. If not, the trial court should restore Mr. Jennings to probation. On the other hand, if the trial court finds that the single violation warrants the revocation of Mr. Jennings’ probation, it may impose the same sentence as before or impose a lesser sentence.

Reversed and remanded with instructions.

DAVIS and CRENSHAW, JJ., Concur.

      . We express some concern that this form is not included in the appellate record. Our efforts to obtain supplementation of the record to include a copy of this form were unsuccessful. However, the transcript of the revocation hearing indicates that the form was introduced into evidence at the hearing.


author: PER CURIAM. NORTHCUTT, Judge,

text:
    JAYLENE, INC.; Find U. Christiansen a/k/a Find Christiansen; Arlene Christiansen a/k/a Arlene Angus Christiansen; Candansk, LLC; Dansk Management, Inc.; American Care Real Estate Holdings, LLC; 1521030 Ontario, Inc.; Arfind America, Inc.; ACMC-CNH, Inc.; Senior Management Services, Inc.; Benjamin Atkins; Marya Morrison; Jacqueline F. Hurt a/k/a Jacqueline Francis Hurt; Kathleen Sylvia; Paul Prybylski a/k/a Paul John Prybylski; Barbara Gallagher a/k/a Barbara Louise Gallagher; Lynn Taggart a/k/a Lynn Marie Moser Taggart; Kim Gibb a/k/a Kimberly Ann Gschwind Gibb; Suzanne Wadlin a/k/a Suzanne Kathryn Wadlin and John Ricardo (as to Carrington Place a/k/a Carrington Place Care Center f/k/a Carrington Place Convalescent Center), Appellants, v. Marguerite STEUER, by and through Victoria PARADISE, her Attorney-In-Fact, Appellee.
    No. 2D07-5305.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 2009.

      Mara B. Levy and Mark B. Hartig of McCumber, Daniels, Buntz, Hartig & Puig, P.A., Tampa, for Appellants Jaylene, Inc.; Find U. Christiansen a/k/a Find Christiansen; Arlene Christiansen a/k/a Arlene Angus Christiansen; Candansk, LLC; Dansk Management, Inc.; 1521030 Ontario, Inc.; Arfind America, Inc.; Benjamin Atkins; Marya Morrison; Jacqueline F. Hurt a/k/a Jacqueline Francis Hurt; Kathleen Sylvia; Paul Prybylski a/k/a Paul John Prybylski; Barbara Gallagher a/k/a Barbara Louise Gallagher; Lynn Taggart a/k/a Lynn Marie Moser Taggart; Kim Gibb a/k/a Kimberly Ann Gschwind Gibb; and John Ricardo (as to Carrington Place a/k/a Carrington Place Care Center f/k/a Carrington Place Convalescent Center).
    Thomas A. Valdez of Quintairos, Prieto, Wood & Boyer, P.A., Tampa, for Appellant Suzanne Wadlin a/k/a Suzanne Kathryn Wadlin.
    Shirin M. Vesely and Brandon S. Vesely of Keane, Reese, Vesely & Gerdes, P.A., St. Petersburg, for Appellant American Care Real Estate Holdings, LLC.
    No appearance for Appellants ACMC-CNH, Inc., and Senior Management Services, Inc.
    Isaac R. Ruiz-Carus and Blair N. Mendes of Wilkes & McHugh, P.A., Tampa, and Susan B. Morrison of Law Offices of Susan B. Morrison, P.A., Tampa, for Appellee.
   PER CURIAM.

As evidenced by the recent cases involving arbitration provisions in nursing home admission contracts, the industry appears to favor arbitration as a means of settling disputes with its clients. See ManorCare Health Servs., Inc. v. Stiehl, 22 So.3d 96, 104 n. 7 (Fla. 2d DCA 2009) (Altenbernd, J., concurring) (citing over thirty-five written opinions by Florida appellate courts addressing nursing home arbitration); Blankfeld v. Richmond Health Care, Inc., 902 So.2d 296, 307 n. 17 (Fla. 4th DCA 2005) (en banc) (Farmer, C.J., concurring) (citing nursing home arbitration cases from each of the other district courts of appeal in Florida). In many instances, nursing home residents or their agents agree to such provisions initially, but they later oppose the provisions when compelled to submit their particular claims to arbitration. This is one such case.

When Marguerite Steuer was admitted to Carrington Place Convalescent Center, the admission contract was executed on her behalf by Victoria Paradise pursuant to a durable power of attorney. The contract contained a provision requiring the parties to submit disputes to binding arbitration “administered” by the National Health Lawyers Association (“NHLA,” now known as the American Health Lawyers Association). Later, Paradise filed suit on Steuer’s behalf, alleging negligence and violation of the residents’ rights enumerated in chapter 400, Florida Statutes (2001). Steuer later died, whereupon the complaint was amended to include wrongful death claims.

The nursing home moved to compel arbitration, and it now appeals the nonfinal order denying same. The circuit court ruled that Steuer’s durable power of attorney did not grant Paradise authority to agree to arbitration. The court also held that the arbitration agreement was void as against public policy because liability limitations contained in the NHLA rules prohibited remedies that otherwise are available to nursing home residents under chapter 400. We conclude that the durable power of attorney was sufficiently broad to confer upon Paradise authority to bind Steuer to the arbitration provision in the admissions contract. See Jaylene, Inc. v. Moots, 995 So.2d 566 (Fla. 2d DCA 2008), review denied, 8 So.3d 1134 (Fla.2009). Therefore, we disagree with the court’s first ground for denying the nursing home’s motion to compel arbitration.

Further, although we share the circuit court’s concern over the limits of liability, we also must disagree with its second reason for denying the motion. When concluding that the arbitration agreement was void as against public policy, the court rejected the nursing home’s argument that the arbitrator should decide this question in the first instance. The circuit court apparently failed to appreciate that this court has held consistently with the nursing home’s position. See Rollins, Inc. v. Lighthouse Bay Holdings, Ltd., 898 So.2d 86, 87 (Fla. 2d DCA 2005) (holding that arbitrator must, in the first instance, decide whether arbitration provision is unenforceable because some of its terms limit remedies). Rather, the circuit court focused on dicta in Bland ex rel. Coker v. Health Care & Retirement Corp. of America, 927 So.2d 252 (Fla. 2d DCA 2006), and further distinguished it by comparing the limitations at issue here with the limitations at issue in Bland and Blankfeld, 902 So.2d 296. But the court overlooked the legal holding in Rollins and erred by failing to apply it.

Bound by Rollins, we must reverse and remand for the circuit court to grant the nursing home’s motion to compel arbitration. We note that we are in conflict with decisions by the First, Fourth, and Fifth Districts holding that the trial court initially must determine whether an arbitration agreement’s limitation on statutory remedies renders the agreement unenforceable on public policy grounds. See, e.g., Alterra Healthcare Corp. v. Estate of Linton ex rel. Graham, 953 So.2d 574 (Fla. 1st DCA 2007); Alterra Healthcare Corp. v. Bryant, 937 So.2d 263 (Fla. 4th DCA 2006); SA-PG-Ocala, LLC v. Stokes, 935 So.2d 1242 (Fla. 5th DCA 2006).

Reversed and remanded.

DAVIS and VILLANTI, JJ., Concur.

NORTHCUTT, J., Concurs with opinion.

NORTHCUTT, Judge,

Concurring.

I concur in this result because it is dictated by this court’s decision in Rollins, 898 So.2d at 87. However, although I believe there is much to recommend the Rollins approach in cases involving public policy defenses to the enforcement of arbitration agreements, I am vexed by concerns about its efficacy under Florida’s arbitration scheme.

My discussion must begin with the principle that the validity of an arbitration agreement can be challenged only by asserting defenses that are generally applicable to all contracts — defenses such as fraud, duress, or unconscionability. See Global Travel Mktg., Inc. v. Shea, 908 So.2d 892, 397 (Fla.2005). One well-established defense to the enforcement of a contract is that the contract violates public policy. See E. Allan Farnsworth, Unen-forceability on Grounds of Public Policy, in Contracts ch. 5 (2d ed. 1990). This defense is firmly rooted in common law, and because it protects the interests of society at large as well as — and sometimes contrary to-those of the contracting parties, it is an important aspect of the courts’ authority. As far back as 1775, Lord Mansfield was expressing the view that an agreement may be void on grounds of public policy, stating: “No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.” Id. § 5.1 at 347 (quoting Holman v. Johnson, 1 Cowp. 341, 343, 98 Eng. Rep. 1120, 1121 (1775)). An early Florida case recognized this defense to contract enforcement, citing the principle “ex turpi causa non oritur actio ” to explain the law’s reluctance to enforce contracts in violation of public policy. Town of Boca Raton v. Raulerson, 108 Fla. 376, 146 So. 576, 577 (1933). Translated, the maxim means “ ‘from an immoral consideration an action does not arise,’ ” which “expresses the principle that a party does not have a right to enforce performance of an agreement founded on a consideration that is contrary to the public interest.” Black’s Law Dictionary 607 (7th ed. 1999).

The United States Supreme Court has applied the public policy contract defense to arbitration awards under collective bargaining agreements in labor cases.

A court’s refusal to enforce an arbitrator’s award under a collective-bargaining agreement because it is contrary to public policy is a specific application of the more general doctrine, rooted in the common law, that a court may refuse to enforce contracts that violate law or public policy. W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983); Hurd v. Hodge, 334 U.S. 24, 34-35, 68 S.Ct. 847, 92 L.Ed. 1187 (1948). That doctrine derives from the basic notion that no court will lend its aid to one who founds a cause of action upon an immoral or illegal act, and is further justified by the observation that the public’s interests in confining the scope of private agreements to which it is not a party will go unrepresented unless the judiciary takes account of those interests when it considers whether to enforce such agreements. E.g., McMullen v. Hoffman, 174 U.S. 639, 654-655, 19 S.Ct. 839, 43 L.Ed. 1117 (1899); Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 356-358, 51 S.Ct. 476, 75 L.Ed. 1112 (1931). In the common law of contracts, this doctrine has served as the foundation for occasional exercises of judicial power to abrogate private agreements.

United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 42, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987) (parallel citations omitted). As mentioned, Misco involved a collective bargaining agreement. To date, the Supreme Court has not applied the public policy defense to an arbitration award in a commercial setting, but the federal circuit courts of appeal have done so. See Stephen L. Hayford, Unification of the Law of Labor Arbitration and Commercial Arbitration: An Idea Whose Time Has Come, 52 Baylor L.Rev. 781, 873-74 (2000) (collecting and discussing commercial arbitration cases applying several non-statutory grounds to vacate arbitration awards including claim of public policy violation).

As can be seen, our contracts jurisprudence recognizes that a court has common law authority to determine that an arbitration agreement is unenforceable because its liability limitations frustrate the public policy underlying a remedial statute. Under Rollins, however, the question of the efficacy of the defense in a particular case initially must be referred to the arbitrator. One advantage in that sequence is that it honors the parties’ agreement to arbitrate by first sending the case to arbitration and later requiring deference to the arbitrator’s findings of fact and interpretation of the contract. See Misco, 484 U.S. at 37-38, 108 S.Ct. 364 (“Because the parties have contracted to have disputes settled by an arbitrator chosen by them rather than by a judge, it is the arbitrator’s view of the facts and of the meaning of the contract that they have agreed to accept.”).

Further, the Rollins approach avoids differing results in cases based only on where the drafter placed limitations on damages. The U.S. Supreme Court has explained that an arbitration agreement is severable from the contract as a whole; when deciding whether there is a valid agreement to arbitrate, a court reviews only the terms of the arbitration provision itself. Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006) (rejecting distinction between void and voidable contracts and holding that while courts decide challenges to validity of arbitration agreements, arbitrators must decide challenges to general provisions in the contract); Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967) (holding that when deciding whether a valid arbitration agreement exists, the court must focus solely on the arbitration agreement and not on the contract as a whole). Thus, if limits on damages are set forth elsewhere in the contract, they play no role in a court’s decision whether to send the case to arbitration. See Estate of Linton, 953 So.2d at 577 (rejecting argument that challenge to limits on liability was actually challenge to admissions contract as a whole, which would present question for arbitrator, when limits were expressly incorporated by reference into arbitration provision); see also Bryant, 937 So.2d 263 (same, distinguishing Beaver Coaches, Inc. v. Revels Nationwide R.V. Sales, Inc., 543 So.2d 359 (Fla. 1st DCA 1989), because limits there were not contained within arbitration provision); cf. Christopher B. Hopkins, Emerging Trends and Conflicts in the Enforcement of Arbitration Clauses, 24 No. 4 Trial Advoc. Q. 44, 46 (2005) (noting, after discussing cases invalidating arbitration agreements on public policy grounds, that “creative drafting also might provide a solution if the party developing a contract simply sets out the arbitration provision as a separate document thereby preventing a valid arbitration clause from being tainted by an allegedly ‘illegal’ contract”). On the other hand, the drafting party may place the liability limitations in the arbitration clause itself in order to ensure that the arbitrator is bound. Cf. Beaver Coaches, Inc. v. Revels Nationwide R.V. Sales, Inc., 543 So.2d 359, 361 (Fla. 1st DCA 1989) (rejecting trial court’s conclusion that contract limits outside of arbitration clause would govern arbitrator’s award and stating that arbitrator was bound only by terms of arbitration agreement).

The Rollins approach also avoids differing results that might depend on the presence or absence of a severance clause and the court’s application of the severability principle independent of the agreement’s provisions. Compare Lacey v. Healthcare & Ret. Corp. of Am., 918 So.2d 333, 335 (Fla. 4th DCA 2005) (denying arbitration when limits in arbitration agreement found to violate public policy, agreement lacked severance clause, and “arbitration and limitation of liability agreement” title suggested that limits went to essence of agreement), with Gessa ex rel. Falatek v. Manor Care of Fla., Inc., 4 So.3d 679 (Fla. 2d DCA 2009) (concluding that limitation provision was severable even when agreement lacked specific severability clause), and Shotts v. OP Winter Haven, Inc., 988 So.2d 639 (Fla. 2d DCA 2008) (same).

As can be seen from the foregoing, arbitration law has been developing in such a way that contracting parties must assess the location of damages provisions in their contract and the potential for severance when they wish to make what should be a simple choice of forum for resolving disputes. Certainly, it is unrealistic to expect that prospective nursing home residents or other consumers who are presented with myriad contract documents to enter facilities, buy cars, and so forth, would have a full understanding of the significance of these permutations in the circumstances under which such agreements are signed. By enforcing the parties’ agreement to arbitrate while maintaining the judicial power to review the public policy defense to an arbitration award, a court would preserve and honor the core purpose of arbitration — to achieve a speedy resolution of claims. At the same time, it would treat all contracts alike, regardless of where the disputed provisions appeared in them.

Finally, by initially referring the public policy defense to the arbitrator, the court would also avoid questions that may never be ripe for decision. Rollins explained that the effect of the contractual limitations at issue there could not be determined at the beginning of the case, when the right to arbitration was invoked, because “at this stage in the proceedings we can only speculate whether [the appel-lee] will ever be affected by the remedial limitations of which it complains.” 898 So.2d at 89; see also Bland, 927 So.2d at 258 (“The arbitrator can assess the public policy concerns in the context of a fully developed factual record. Conceivably, the evidence presented in arbitration could render these concerns moot”). Indeed, the court itself would be in a better position to evaluate a potential public policy violation after the facts are established. Cf. David M. Glanstein, A Hail Mary Pass: Public Policy Review of Arbitration Awards, 16 Ohio St. J. on Disp. Resol. 297, 811 (2001) (“The public policy exception is rooted in the common law doctrine that contracts which violate law or policy should not be enforced; therefore, only where enforcement of the award materially impairs public policy in a way proscribed by that policy, should deference to arbitrators’ authority be withdrawn. This approach seems most consistent with Misco.”) (emphasis supplied).

For the foregoing reasons, I believe that courts should avoid addressing alleged violations of public policy at the beginning of the arbitration process. But this raises a significant question: If not then, when? Rollins’ holding that the arbitrator must address the defense “in the first instance” obviously assumed the existence of some mechanism for eventually placing the issue before the court. But it is not clear to me that existing Florida law provides for such.

Section 682.13, Florida Statutes (2008), authorizes a narrow list of grounds for vacating an arbitration award.

(1) Upon application of a party, the court shall vacate an award when:
(a) The award was procured by corruption, fraud or other undue means.
(b) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or umpire or misconduct prejudicing the rights of any party.
(c) The arbitrators or the umpire in the course of her or his jurisdiction exceeded their powers.
(d) The arbitrators or the umpire in the course of her or his jurisdiction refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of s. 682.06, as to prejudice substantially the rights of a party.
(e) There was no agreement or provision for arbitration subject to this law, unless the matter was determined in proceedings under s. 682.03 and unless the party participated in the arbitration hearing without raising the objection.

§ 682.13(1). Significantly, the statute concludes by declaring that “the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.” Id. The Florida Supreme Court has instructed that “in the absence of one of the five factors set forth in the statute, neither a trial court nor a district court of appeal has the authority to overturn the award.” Schnurmacher Holding, Inc. v. Noriega, 542 So.2d 1327, 1328 (Fla.1989).

The question, then, is whether the foregoing statutory list would permit a court to vacate an arbitration award if it determined that the arbitration agreement was unenforceable because it violated public policy.

Reference to federal law, while somewhat helpful, does not furnish the answer. Under the Federal Arbitration Act (“FAA”), the enumerated grounds to vacate an award are likewise limited and include only the following:

(a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration—
(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

9 U.S.C. § 10(a). However, in contrast to Florida courts’ strict adherence to the statutory criteria for vacating arbitration awards, the federal circuit courts of appeals have also reviewed awards on other grounds, including violations of public policy. See Hayford, supra at 873 (collecting cases). “[T]he one glaring void in the law of commercial arbitration is the absence of definitive Supreme Court guidance as to the grounds for vacatur of awards.” Id. at 880. In a recent case, the Supreme Court held that 9 U.S.C. §§ 10 and 11 respectively “provide the FAA’s exclusive grounds for expedited vacatur and modification.” Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 1403, 170 L.Ed.2d 254 (2008). That case, however, involved the FAA’s procedure for expedited review in federal court. Id. at 1402 (“An application for any of these orders [confirming, vacating, or modifying an arbitration award] will get streamlined treatment as a motion, obviating the separate contract action that would usually be necessary to enforce or tinker with an arbitral award in court.”)- And even there, the Supreme Court noted that neither party raised “an independent state-law contract claim or defense.” Id. at 1402 n. 3.

For purposes of this discussion, the glaring difference between the federal arbitration statutes and Florida’s is that the FAA lacks the Florida statute’s admonition that “the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.” § 682.13(1). Thus, unlike federal courts, Florida courts are statutorily confined to the vacatur grounds listed in the statute.

Which of those grounds would include a violation of public policy is unclear. If a liability limitation appears in the arbitration clause, an award that is inconsistent with that limitation arguably would exceed the arbitrator’s powers, which provides a statutory basis for vacating the arbitration award. See § 682.13(l)(c). In that case, the court likely would have authority to consider a public policy challenge to the limitation when determining whether to vacate the award. But if the liability limit appears elsewhere in the underlying contract, an arbitration award inconsistent with the limitation arguably would be a mere legal error, unreviewable on a motion to vacate under the statute. See Verzura Constr., Inc. v. Surfside Ocean, Inc., 708 So.2d 994 (Fla. 3d DCA 1998) (noting bar to setting aside arbitration award for error as to law or fact). Perhaps most troubling of all would be a scenario in which the arbitrator’s award is consistent with a contractual liability limitation that would be unenforceable for policy reasons in a traditional court proceeding. In that case, under the statute could the plaintiff seek to vacate the award on that ground?

If Rollins is correct and the court does not in the first instance resolve the public policy defense, but yet we are persuaded that the court must at some point rule on the issue, to reconcile Rollins and Schnur-macher Holding we would have to hold that under the statute arbitrators exceed their power when their awards violate public policy. Cf. Hall St. Assocs., 128 S.Ct. at 1404 (noting that “manifest disregard,” when used to vacate arbitration award, “may have been shorthand for § 10(a)(3) or § 10(a)(4), the subsections authorizing vacatur when the arbitrators were ‘guilty of misconduct’ or ‘exceeded their powers’ ”).

Otherwise, it might appear that Rollins is incorrect. And, indeed, it may be when considered in light of Seifert v. U.S. Home Corp., 750 So.2d 633 (Fla.1999). In that case, the Florida Supreme Court encapsulated the three questions a court must answer when faced with a motion to compel arbitration: “(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Id. at 636. Resolution of these questions is a matter of contract interpretation. Id. A court must answer the first question in Seifert by looking only at the arbitration agreement, Prima Paint, 388 U.S. at 404, 87 S.Ct. 1801, but in looking at the arbitration agreement it may consider only general contract defenses, Global Travel Mktg., 908 So.2d at 397. By deferring this issue to the arbitrator, does the court abdicate its responsibility under Sei-fert to make the threshold determination of whether a valid arbitration agreement exists before compelling arbitration? See Estate of Linton, 953 So.2d at 578 (“The issue of whether the provision violated public policy goes to the first Seifert inquiry: whether there was a valid agreement to arbitrate.”). It certainly does if the court is foreclosed from looking at the issue on the back end. If the arbitration agreement truly violates public policy, then an award under the agreement cannot be enforced, and a court would appear to go astray by lending its authority to the enforcement of such an agreement. See Global Travel Mktg., 908 So.2d at 398 (“No valid agreement exists if the arbitration clause is unenforceable on public policy grounds”).

To date, no Florida authority has furnished answers to my questions. I agree with the Rollins approach, and in the instant case I endorse the ruling that is required by Rollins. But, until it becomes clear that a public policy defense may be raised in a statutory motion to vacate an arbitration award, I will continue to have serious reservations.


author: DAVIS, Judge.

text:
    Paul BAUMANN, Appellant/Cross-Appellee, v. Faye BAUMANN, Appellee/Cross-Appellant.
    No. 2D09-614.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 2009.

      Ted Martin and Angela Flaherty of Sy-prett, Meshad, Resnick, Lieb, Dumbaugh, Jones & Krotee, Sarasota, for Appellant/Cross-Appellee.
    John A. Colton of Burgess, Harrell, Mancuso, Olson & Colton, P.A., Sarasota, for Appellee/Cross-Appellant.
   DAVIS, Judge.

Paul Baumann, the Former Husband, challenges the trial court’s order setting aside a previously entered order that reduced his alimony obligation to Faye Bau-mann, the Former Wife. Because the trial court applied the incorrect legal standard, we reverse and remand for further consideration.

The marriage of these parties was dissolved by final judgment on September 6, 2005. The terms of that final judgment ordered the Former Husband to pay $1800 a month in permanent periodic alimony to the Former Wife. On August 21, 2007, the Former Husband, citing section 61.14(l)(b)(2)(a-k), (3), Florida Statutes (2007), petitioned the trial court to either reduce or terminate the alimony obligation, alleging that the Former Wife was involved in a “supportive relationship.” At the initial hearing on the petition, the trial court found that the Former Husband adequately had proven the existence of the supportive relationship and that the Former Wife’s supporting partner was contributing $1400 a month to their joint mortgage payments. Accordingly, the trial court reduced the Former Husband’s alimony obligation to $400 a month.

The Former Wife filed a motion for rehearing, arguing that the trial court had erred in granting the reduction because the Former Husband had failed to adequately prove the existence of a supportive relationship and also had failed to show that the Former Wife’s financial needs had been reduced by her expense-sharing relationship. Following a hearing on the motion, the trial court issued its written order, finding that the Former Husband had “provided sufficient facts to the Court” to demonstrate that the Former Wife was in a supportive relationship as statutorily defined. However, the trial court then determined that once this was shown, it was the Former Husband’s burden to prove “that because of the supportive relationship the Former Wife’s need for alimony decreased.” The trial court concluded that the Former Husband failed to meet that burden and therefore restored the alimony obligation to the original amount of $1800 a month. The Former Husband appeals this order.

In discussing the procedure to be followed once a petitioner has shown a required change of circumstances in his seeking a reduction in alimony obligations, this court has observed:

“Once any such evidence other than the mere remarriage has been presented, the burden of proof of continued need should shift to the recipient spouse since the evidence as to the recipient spouse’s economic circumstances ... is peculiarly within his or her knowledge and may not be readily available to the payor spouse.”

Maas v. Maas, 438 So.2d 1068, 1070 (Fla. 2d DCA 1983) (quoting Frye v. Frye, 385 So.2d 1383, 1389-90 (Fla. 2d DCA 1980)). Although the supportive relationship concept is specifically defined by statute, it is in essence a substantial change in circumstances, and therefore, the rule described in Maas applies. Accordingly, once the Former Husband demonstrated that the Former Wife currently is engaged in a supportive relationship, the issue of reducing or terminating the alimony obligation becomes one determined by the financial needs and abilities of the parties. Since the Former Wife is the better source with regard to her financial needs, the burden is on her as the recipient to demonstrate that her financial need as originally established upon dissolution continues to exist despite the existence of the supportive relationship.

Because the trial court improperly placed the burden of proving a reduction of the Former Wife’s financial need on the Former Husband, we reverse the trial court’s order and remand for the trial court to apply the correct burden of proof.

On cross-appeal, the Former Wife argues that the trial court erred in denying her request for attorney’s fees and in reducing the Former Husband’s alimony obligation from $1800 to $400 for the four-month period between the issuing of the original reduction order and the order on appeal. The Former Wife is correct that the trial court erred in denying her request for attorney’s fees without making any factual findings as to her need and the Former Husband’s ability to pay. See Perrin v. Perrin, 795 So.2d 1023, 1024 (Fla. 2d DCA 2001) (“[A] trial court cannot decide the issue of attorney’s fees without findings as to one spouse’s ability to pay fees and the other spouse’s need to have fees paid.”). Furthermore, there is nothing in the record before us to support the four-month alimony reduction. Accordingly, upon remand, the trial court shall reconsider these issues, making any necessary factual findings.

Finally, we note that the Fourth District in French v. French, 4 So.3d 5, 6-7 (Fla. 4th DCA 2009), has concluded that “once a trial court makes a finding that a supportive relationship exists, it must by necessity either reduce or terminate alimony because the obligee’s need has changed.” This conflicts with our conclusion here that the finding that a supportive relationship exists is merely a change in circumstances that shifts the burden of proving continued need to the recipient spouse. We therefore certify conflict with French.

Reversed and remanded with instructions; conflict certified.

ALTENBERND and FULMER, JJ., Concur.

      . The discretionary language of section 61.14( 1 )(b)(3) further supports our conclusion that the determination that a supportive relationship exists does not conclude the inquiry. The statute clearly states that upon the establishment of the supportive relationship, “alimony terminable upon remarriage may be reduced or terminated.” Id. (emphasis added).


text:
    Samuel FLORES-VEGA, a/k/a Samuel F. Vega, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3529.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 2009.

      Samuel Flores-Vega, pro se.
   WALLACE, Judge.

Samuel Flores-Vega appeals the summary denial of all four grounds contained in his motion for postconviction relief filed in accordance with Florida Rule of Criminal Procedure 3.850. We affirm without discussion the postconviction court’s denial of claim three, but we reverse as to all other grounds and remand for further proceedings.

I. THE RELEVANT PROCEDURAL HISTORY

Mr. Flores-Vega had five separate cases pending before the circuit court. In accordance with a plea agreement, he entered admissions to violating his probation in two of these cases and nolo contendere pleas in the remaining three cases. The current appeal concerns only the three cases in which Mr. Flores-Vega pleaded nolo con-tendere.

In case number CF06-009006-XX, Mr. Flores-Vega was charged with burglary of a dwelling with an assault or battery while armed with a firearm, attempted felony murder, four counts of robbery with a firearm, and three counts of attempted armed robbery. Mr. Flores-Vega entered a nolo contendere plea to the three counts of attempted armed robbery in exchange for the State’s agreement to nolle pros the remaining charges. He was adjudicated guilty and was sentenced as a prison re-leasee reoffender to three concurrent terms of fifteen years’ imprisonment.

In case number CF06-009040-XX, Mr. Flores-Vega was charged with burglary of a dwelling and third-degree grand theft. Mr. Flores-Vega entered a nolo contende-re plea to all charges. He was adjudicated guilty and was sentenced as a prison re-leasee reoffender to concurrent terms of fifteen years’ imprisonment for the burglary and five years’ imprisonment for the grand theft.

In case number CF06-009097-XX, Mr. Flores-Vega was charged with burglary of a conveyance and third-degree grand theft. Mr. Flores-Vega entered a nolo contende-re plea to all charges. He was adjudicated guilty and was sentenced as a prison re-leasee reoffender to two concurrent terms of five years’ imprisonment.

The judgments and sentences for these three cases were rendered on April 16, 2007. The charging documents are not part of the record. Mr. Flores-Vega stipulated to the factual basis, and no description of the facts is detailed in the transcript of the change of plea hearing. The sentences in all five eases were designated to run concurrently with each other.

Mr. Flores-Vega did not appeal his judgments and sentences. On April 7, 2008, Mr. Flores-Vega filed a motion for postconviction relief raising four grounds. The postconviction court summarily denied the motion. We will consider grounds one, two, and four separately below.

II. DISCUSSION

A. Ground One — Failure to Inform That State Could Not Establish Pri-ma Facie Case

In ground one of his motion, Mr. Flores-Vega alleged that his trial counsel was ineffective for failing to inform him about available defenses to the charges of burglary of a dwelling with an assault or battery while armed with a firearm, attempted felony murder, robbery with a firearm, attempted armed robbery, and burglary of a dwelling.

Mr. Flores-Vega claimed that his counsel failed to tell him that he could defend against the charges of burglary of a dwelling with an assault or battery while armed with a firearm, attempted felony murder, and robbery with a firearm. The allegations in Mr. Flores-Vega’s motion indicate that the State might not have been able to prove these charges. The postconviction court denied ground one with regard to these charges because the charges were nolle prossed and Mr. Flores-Vega was not convicted of them. For this reason, the postconviction court concluded that he could not show prejudice. We disagree. The plea form indicates that Mr. Flores-Vega was facing a life sentence on each of these charges. If the State could not present sufficient evidence to support convictions for these charges, the maximum penalty he faced was fifteen years’ imprisonment instead of life imprisonment. Under these circumstances, it is likely that Mr. Flores-Vegas would have rejected a plea agreement where he would be sentenced to fifteen years’ imprisonment in exchange for his plea.

Mr. Flores-Vega also claims that counsel did not tell him that he could defend the charges of attempted armed robbery on the ground that the victims could not identify what he had attempted to take. With regard to the charge of burglary of a dwelling, Mr. Flores-Vega contends that counsel did not tell him he could argue that he did not enter the dwelling with the intent to commit an offense.

The postconviction court summarily denied ground one with regard to the charges of attempted armed robbery and burglary of a dwelling because it was “simply a creative attempt at arguing the sufficiency of the evidence inappropriately couched in terms of ineffective assistance of counsel.” However, this court reversed the summary denial of a similar claim where the defendant alleged that counsel was ineffective for failing to inform him that the State could not prove that he possessed child pornography because he lacked the requisite mens rea. Rodriguez v. State, 932 So.2d 1287, 1290 (Fla. 2d DCA 2006). We held that “[cjounsel’s misadvice concerning available defenses during the plea process can give rise to ineffective assistance of counsel claims.” Id. Thus we reverse the summary denial of the motion’s ground one and remand for further proceedings.

B. Ground Two — Failure to Inform About Double Jeopardy Issues

In ground two of his motion, Mr. Flores-Vega claimed that trial counsel was ineffective for failing to advise him that he could not be convicted of the multiple charges of robbery with a firearm and the multiple charges of attempted armed robbery because the information alleged a single taking during a single criminal episode. Mr. Flores-Vega stated that but for counsel’s ineffectiveness, he would not have entered the plea and would have proceeded to trial. Thus Mr. Flores-Vega raised a facially sufficient claim. See Weitz v. State, 795 So.2d 1021, 1022-23 (Fla. 2d DCA 2001).

The posteonviction court summarily denied this claim because it was “refuted by the case law.” The postconviction court cited Palmer v. State, 438 So.2d 1 (Fla.1983), superseded by statute/rule as stated in Suarez v. State, 464 So.2d 259 (Fla. 2d DCA 1985), approved, 485 So.2d 1283 (Fla.1986), to support this proposition. However, Palmer did not involve a single taking and did not address a double jeopardy claim. 438 So.2d at 2-3. The dispositive issue in a double jeopardy claim involving robbery charges “ ‘is whether there have been successive and distinct forceful takings with a separate and independent intent for each transaction.’ ” Labarbara v. State, 5 So.3d 801, 803 (Fla. 2d DCA 2009) (quoting Brown v. State, 430 So.2d 446, 447 (Fla.1983)). Where a single taking from multiple victims occurs, the defendant may properly be charged for only one count of robbery. Brown v. State, 1 So.3d 1231, 1233 (Fla. 2d DCA 2009). Thus dual convictions for attempted armed robbery based on a single taking would violate double jeopardy. Cf. Schulterbrandt v. State, 984 So.2d 542, 544 (Fla. 2d DCA 2008) (“[W]e conclude that Schul-terbrandt’s dual convictions for attempted home-invasion robbery based on a single home invasion violated double jeopardy.”).

Accordingly, because the limited record before us does not conclusively refute Mr. Flores-Vega’s claim that the charged crimes involved a single taking, we reverse the summary denial of ground two and remand for further proceedings. See Weitz, 795 So.2d at 1023.

C. Ground Four — Counsel’s Misadvice Concerning Plea

In ground four of his motion, Mr. Flores-Vega claimed that counsel was ineffective for misadvising him that several cases would be dismissed as a result of his plea. He alleged that he admitted the violations of probation and entered a plea to the burglary of a dwelling with an assault or battery while armed with a firearm in case number CF06-009006-XX based on the understanding that the other two cases would be dismissed. The post-conviction court summarily denied this claim because the transcript of the plea hearing showed that Mr. Flores-Vega knew the nature of his pleas. However, the transcript of the plea hearing does not reveal the content of any communications between defense counsel and Mr. Flores-Vega. In fact, nothing in the record refutes Mr. Flores-Vega’s allegation that counsel told him that several cases would be dismissed as a result of his plea. Because Mr. Flores-Vega’s motion is facially sufficient and is not conclusively refuted by the record, the circuit court erred when it summarily denied this ground. See Roberti v. State, 782 So.2d 919, 920 (Fla. 2d DCA 2001) (“Affirmative misadvice about even a collateral consequence of a plea constitutes ineffective assistance of counsel and provides a basis on which to withdraw the plea.”). Accordingly, we reverse the summary denial of ground four and remand for further proceedings.

III. CONCLUSION

For these reasons, we reverse the post-conviction court’s order to the extent that it summarily denied claims one, two, and four of Mr. Flores-Vega’s motion, and we remand for further proceedings consistent with this opinion. Unless the record conclusively refutes these claims, the postcon-viction court shall conduct an evidentiary hearing. If the postconviction court again summarily denies any of these three claims, it must attach portions of the record that conclusively refute the claim. See Chandler v. State, 843 So.2d 1046, 1047 (Fla. 2d DCA 2003). In all other respects, we affirm the postconviction court’s order.

Affirmed in part, reversed in part, and remanded.

FULMER and NORTHCUTT, JJ., Concur.

      . Mr. Flores-Vega's double jeopardy argument concerning the attempted armed robbery charges is addressed in the discussion of ground two of his motion.


text:
    ALTO CONSTRUCTION COMPANY, INC., Petitioner, v. FLAGLER CONSTRUCTION EQUIPMENT, LLC, Respondent.
    No. 2D09-928.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 2009.
    F. Lorraine Jahn of Law Offices of F.L. Jahn, P.A., Tampa, for Petitioner.
    Noel P. McDonnell, Patrick T. Lennon, and Nancy S. Paikoff of Macfarlane Ferguson & McMullen, Tampa, for Respondent.
   WALLACE, Judge.

Alto Construction Company, Inc., petitions this court for a writ of certiorari to quash the circuit court’s order that disqualified its counsel. Because the circuit court used the wrong legal standard in ordering counsel’s disqualification, the order departs from the essential requirements of law. Accordingly, we grant the petition and quash the order.

THE FACTS AND PROCEDURAL BACKGROUND

Flagler Construction Company, Inc., is in the business of selling and leasing heavy construction equipment to general contractors, site contractors, and paving contractors. Before the events that gave rise to the litigation in the court below, Flagler and Alto had entered into contracts concerning several pieces of equipment. Fla-gler ultimately filed an action against Alto in the circuit court to replevy two pieces of equipment and for damages for breach of contract. Alto filed an answer to the complaint and counterclaimed against Flagler.

F. Lorraine Jahn represents Alto in the litigation pending in the circuit court. Ms. Jahn is also on retainer to Alto. Before Flagler filed its complaint, Ms. Jahn had direct contacts and communications with employees of Flagler and a third company concerning the disputes that are the subject of the pending action. Based on these contacts and communications, Flagler moved to disqualify Ms. Jahn as Alto’s counsel. In the order under review, the circuit court summarized the grounds that Flagler asserted for Ms. Jahn’s disqualification as follows: “First, that Ms. Jahn will be a necessary and material witness; second, that Ms. Jahn is likely to be a named co-Defendant in [Flagler’s] proposed Amended Complaint; third, that Ms. Jahn allegedly violated her obligations under the Florida Rules of Professional Conduct.”

The circuit court conducted an evidentia-ry hearing on the motion. At the hearing, Flagler’s counsel asserted that Ms. Jahn’s testimony concerning some of the events in dispute would be “central to Flagler’s case.” In other words, Flagler intended to call Ms. Jahn as a witness at trial. For its part, Alto filed an affidavit from its president stating that “Alto does not intend to call [Ms.] Jahn as a witness at trial in this matter.” Ms. Jahn observed that “disqualification impinges on a party’s right to employ a lawyer.” She suggested that Flagler’s motion was filed for “tactical purposes.”

After the hearing, the circuit court entered an order granting the motion and disqualifying Ms. Jahn as Alto’s counsel. In its order, the circuit court did not address the motion’s second ground concerning the possibility that Ms. Jahn would be named as a defendant in Flagler’s proposed amended complaint. The circuit court rejected the third ground, finding that “Ms. Jahn did nothing to violate her ethical obligations.” Thus the order of disqualification was necessarily based on the first ground. In this regard, the circuit court found that Ms. Jahn “may very well be a material witness by having injected herself into the business dealings out of which this dispute arises.”

DISCUSSION

A petition for writ of certiorari is appropriate to review an order disqualifying counsel. AlliedSignal Recovery Trust v. AlliedSignal, Inc., 934 So.2d 675, 677 (Fla. 2d DCA 2006). The jurisdictional requirements for certiorari review are met in this case because “an order disqualifying counsel denies the right to choose one’s counsel and works a material injury that cannot be remedied on appeal.” Id. Thus we turn our attention to whether the circuit court departed from the essential requirements of law.

Alto argues that the circuit court departed from the essential requirements of law because it relied on an improper standard that did not consider whether counsel’s testimony would be adverse to Alto’s position when it disqualified Ms. Jahn. In response, Flagler contends that “[a]n explicit finding of adversity is not required.” According to Flagler, there is no “departure from the essential requirements of law because it is implicit that the court found that [Ms.] Jahn’s testimony would be adverse to her client.” We disagree with Flagler and agree with Alto.

The Rules Regulating The Florida Bar do not mandate an attorney’s automatic disqualification when he or she is called to testify by an opposing party. Id. at 680; see R. Regulating Fla. Bar. 4-3.7(a) (“A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client.” (emphasis added)). But see Scott v. State, 717 So.2d 908, 910 n. 8 (Fla.1998) (stating in dicta that rule 4-8.7 “also addresses the conflict that arises when a lawyer is called as a witness by the opposing side to testify against a private client”). Instead, an attorney that will be called as a witness by an opposing party may be disqualified if the attorney’s testimony will “be ‘sufficiently adverse to the factual assertions or account of events offered on behalf of the client.’ ” AlliedSignal Recovery Trust, 934 So.2d at 679 (quoting Allstate Ins. Co. v. English, 588 So.2d 294, 295 (Fla. 2d DCA 1991)). We have explained that “[t]he requirement that a lawyer withdraw when he expects to be a witness was not intended to permit an opposing party to call him as a witness and disqualify him from serving as counsel.” Id. at 680.

Flagler cites Fleitman v. McPherson, 691 So.2d 37, 38 (Fla. 1st DCA 1997), for the proposition that disqualification of counsel is appropriate “when it is shown that the attorney will be an indispensable witness or when the attorney becomes a ‘central figure’ in the case.” However, we find this argument unpersuasive. Fleitman addresses the situation where the attorney will be testifying on behalf of his or her own client. See AlliedSignal Recovery Trust, 934 So.2d at 680.

It follows that the circuit court departed from the essential requirements of law when it disqualified Alto’s attorney without determining whether Ms. Jahn’s testimony would be adverse to Alto’s factual assertions or account of events. Thus we grant the petition and quash the order disqualifying Ms. Jahn as Alto’s counsel. The circuit court should reconsider Flagler’s motion in light of the correct standard.

Petition granted; order quashed.

FULMER and NORTHCUTT, JJ., Concur.