author: MORRIS, Judge.

text:
    Tyler John POCZATEK, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-276
    District Court of Appeal of Florida, Second District.
    Opinion filed March 10, 2017

      Donald P. Day of Law Office of Donald Day, Naples, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Appel-lee.
   MORRIS, Judge.

Tyler John Poczatek appeals his convictions after a jury trial for felony battery and aggravated child neglect. We affirm his conviction for felony battery without comment, but we reverse his conviction for aggravated child neglect because the State did not present sufficient evidence of that offense.

I. Facts

On April 28, 2014, Poczatek was charged with aggravated child abuse and aggravated child neglect based on an incident that occurred on February 25, 2014, involving his girlfriend’s three-year-old son, C.R. He proceeded to trial on November 30, 2015.

At trial, the child’s mother, T.R., testified that she was dating Poczatek when the incident occurred. She and C.R. had lived with Poczatek previously, but at the time of incident, Poczatek lived with his father. On the night of the incident, T.R. had asked Poczatek to watch C.R. while she went to the gym in Poczatek’s neighborhood. T.R. and her friend from work ran from the house to the gym. When she was working out, she received a message from Poczatek telling her to be quiet when she got back because C.R. was asleep. She thought nothing of it because it was close to C.R.’s bedtime. She and her friend worked out for a total of forty minutes before they headed back. On their way back, T.R. received two phone calls from Poczatek. She answered the second one, and Poczatek told her that C.R. “had fallen.” She heard “heavy breathing” in the background. She immediately called 911.

When T.R. returned to the house, she saw C.R. in the front passenger seat of Poczatek’s car, which was parked in the driveway. C.R. was “stiff, bleeding, [and] uncomfortable.” T.R.’s friend got C.R. out of the car and placed him on a towel on the floor of the garage. T.R. described Pocza-tek as panicked. He told T.R. that “[C.R.] was jumping on the stairs in the garage” and “that he had hit [Poczatek’s] car frontward and then fell backwards on the stairs.”

An ambulance responded and took C.R. to Lee Memorial Hospital. T.R. described C.R.’s appearance at the hospital as mangled. She noticed bruising and cuts on his face, and she had noticed when he was being put on a stretcher at the house that “the right side of his head was swollen.” C.R. was eventually taken to Tampa General Hospital. C.R. was in the hospital for approximately three weeks. C.R. had multiple therapy sessions and had to relearn basic skills. He “will forever be listed as ‘TBI,’ which is Traumatic Brain Injury.” There are concerns about C.R.’s eyesight and his possible intellectual deficiencies. Two to three weeks after the incident, Poczatek told T.R. a different story about what happened. He told her “that he was hanging [C.R.] upside down, swinging him, and [Poczatek] accidentally, dropped him.”

On cross-examination, T.R. testified that it was not unusual for Poczatek to play with or babysit C.R. When she returned to the house after working out and saw C.R. in the front seat of Poczatek’s car, she assumed that Poczatek was about to take C.R. to the emergency room. The ambulance arrived shortly after she returned to the house.

C.R. also testified. He was five years old at the time. When asked if something had happened with him and Poczatek, C.R. answered: “[H]e slammed me on the head.” C.R. was asked where in the house this happened, and he answered “[i]n the garage, floor.” C.R. denied that he played with Poczatek, although he agreed that Poczatek had babysat him before. C.R. does not like Poczatek anymore: “I didn’t like it when he slammed me on the head.” They were in the garage when it happened, and Poczatek had been waxing his car. C.R. did not remember Poczatek swinging him or picking him up, but he did remember Poczatek tickling him. Then, Poczatek picked him up by his waist and slammed him on the head. C.R. said that Poczatek held C.R. over his head and threw C.R. “really hard.” Right before that happened, Poczatek had been playing with and tickling C.R.

T.R.’s friend testified that she had been working out with T.R. on the night of the incident. When they returned to the house, C.R. was in Poczatek’s car and appeared to be unconscious. She did not think “him being in the front seat was right,” so she laid him on the floor. Later, Poczatek drove her back to her car and tried to explain what happened. She said that Poc-zatek told two stories, one about the stairs and one about the vehicle, but she could not recall exactly what Poczatek said. She did not ask him any questions because she did not want to listen. On cross-examination, she admitted that she never told law enforcement in her statement that Pocza-tek told two stories. She was not clear if he had told two stories.

The responding deputy testified that he observed C.R. lying on a towel in the garage. The deputy observed “blood coming from his ear canal, filling up in his ear canal.” The child was making noises but was unresponsive. The child also had a large welt behind his right ear and “some bruising that was appearing on his face.” His skin was flushed, and he had an abrasion on his elbow. He asked T.R. to retrieve a pillow, and the pillow she retrieved had blood on it. Poczatek explained to the deputy that Poczatek was in the garage cleaning his car when he heard the door open from the house and heard C.R. fall down the stairs. Poczatek did not tell the deputy that he was wrestling with C.R, or swinging him into the air. Poczatek told the deputy that after C.R. fell, C.R. wanted to watch television so Poczatek picked him up and put him in bed in the bedroom. The State introduced photographs of C.R,’s injuries.

The trauma surgeon who treated C.R. at Lee Memorial Hospital testified that C.R. was unresponsive when he was brought to the emergency room. The paramedics were assisting his breathing, so the hospital staff put in a breathing tube. C.R. had a Glasgow Coma Score of 8, which is considered comatose. A CT scan of the head and brain showed “multiple skull fractures, primarily toward the back, right of the head,” bleeding around the brain, and bruising and swelling of the brain. One of the fractures was unusual: “[T]he skull, itself, had not only cracked, but it had completely offset or had been displaced by a width of the bone itself, and that signifies a very significant amount of kinetic energy to cause that type of injury.” C.R. also had bruising to both elbows and an abrasion around his belly button. The doctor did not notice bruising on the child’s face. As soon as the injuries were diagnosed, the child was transported to Tampa General Hospital.

The surgeon testified that it was possible but unlikely that the child’s injuries were caused by the child running or falling down on his own. This is because the child could not generate enough kinetic energy. It was also highly unlikely that the injuries were caused by an adult holding the child by the child’s legs and dropping the child. The brain and skull injuries were caused by blunt force trauma. It was probable that the child was picked up and thrown down on a hard surface with an edge. The doctor testified that the child would have probably become symptomatic immediately after suffering these injuries, meaning he would have lost consciousness to some degree and he would have begun bleeding out of his ear. On cross-examination, he clarified that every brain injury is different and that a person could become symptomatic within five seconds to five hours.

A detective testified that he responded to Poczatek’s home after the incident. In Poczatek’s bedroom, the detective noticed a glass with what appeared to be blood on it. The bed was missing a pillow that had been taken to the garage. The pillow and a towel in the garage also appeared to have blood on them. None of the items were tested because there was no indication that the blood belonged to anybody other than the victim.

The emergency room physician who treated C.R. at Tampa General Hospital testified that C.R. had skull fractures and brain bleeding and bruising. She described the injuries as blunt impact trauma. She testified that such injuries would cause a child to be immediately symptomatic and that the child would deteriorate within a few hours. It was very unlikely that the injuries were caused by the child’s falling because “[i]t takes a lot of energy to do that much damage.” It was also very unlikely that the injuries were caused by the child’s being dropped; the injuries were more consistent with “additional force being applied” on the side of his head. The physician testified that people have protective reflexes when they are falling or being hit but that she did not document any injuries on his hands. On cross-examination, she stated that it would not be unreasonable for a person to have protective reflex injuries on their elbows. She did not document any elbow injuries on C.R., and she had not reviewed all of the medical records in the case. She was not surprised to hear that the other physician found marks on C.R.’s elbows. The physician testified that contact on a sharp corner of a stair or a table has much greater impact than contact on a flat surface. On redirect examination, she stated that she believed that C.R.’s injuries were from more than one instance of blunt force trauma.

A child protective investigator testified that he responded to Tampa General Hospital and spoke to C.R.’s treating doctors, T.R., and Poczatek. Poczatek told the investigator that Poczatek was waxing his car when C.R. was jumping down the steps and fell down. Poczatek did not see C.R. fall but heard him fall. Poczatek told the investigator that he picked C.R. up and took C.R. to his bathroom and then his bedroom. Poczatek applied ice to C.R.’s head, and C.R. said he was fine and wanted to watch Power Rangers. Poczatek left C.R. in the bedroom and went back to work on his car. Poczatek later checked on C.R. and noticed that he was having difficulty breathing. That is when Poczatek called T.R. and got ready to take C.R. to the hospital. Poczatek never told the investigator that he was wrestling with the child or that he had dropped the child.

The State also introduced photographs of the garage and Poczatek’s bedroom as well as photographs of C.R.’s injuries.

The defense presented the testimony of an expert forensic pathologist and neuro-pathologist. He testified that in rare cases, a short fall can cause a fracture or death. He reviewed the records in this case. He testified that one impact can cause multiple fractures, “especially in this case.” He said that a respiratory mask could eause facial bruising and that a neck collar placed on the child by EMS could cause the marks on the back of his ear. It was more than probable that C.R.’s injuries were caused from “throwing the child to the side and him hitting concrete.” On cross-examination, the doctor testified that his work mostly involves performing autopsies and that he does not generally deal with child abuse patients. The doctor testified that people are symptomatic immediately after a skull injury but that some people do not show symptoms until ten minutes to several hours later. Most kids would have symptoms early on, such as unconsciousness or bleeding out of the ear canal. Swinging the child or throwing him down would increase the chance of his receiving a significant injury, such as a skull fracture with bleeding inside the brain. The doctor testified that the injuries were consistent with an adult’s throwing the child on the ground but were also consistent with the child’s running and falling.

Poczatek’s father, John, testified that Poczatek lived with John at the time in question. On the night of the incident, Poczatek called John in a panic. John advised Poczatek on what to do, and John also told the police what he had told Pocza-tek to do. A couple of weeks later, Pocza-tek came to John crying and upset. Pocza-tek had something to tell John, but John did not testify regarding what Poczatek had told him. On cross-examination, John testified that T.R. and the child would often spend the night at John’s house, although John did not know the last name of T.R. or the child.

Poczatek testified in his own defense. He and T.R. began dating in May 2014. They lived in an apartment together for four months, but when the lease expired, he moved into his father’s house. Frequently when T.R. worked, Poczatek would babysit the child. He was very close with C.R. and got along with him well. Poczatek never struck the child in anger or spanked him on the rear end.

On the night of the child’s injuries, Poc-zatek was watching the child while T.R. went to the gym with her friend. He hung out with the child and then put on a movie for him to watch in the bedroom while Poczatek did some things. When Poczatek checked on the child, the child was sleeping, so Poczatek turned off the television and went to the garage to work on his car. At some point, the child walked out into the garage. Poczatek asked the child why he was not sleeping and “picked him up” and tickled him. They were “playing around, goofing around, [and] wrestling,” like they always did. Poczatek would often tickle the child, and the child would laugh like kids do. Poczatek testified: “I picked him up by his stomach and then I flipped him over and I was swinging him by his ankles.” Poczatek demonstrated how he would swing the child, saying that he did this sometimes. As he was swinging the child, the child slipped out of Poczatek’s hands. Poczatek immediately ran over to the child and picked him up. The child was crying and holding his head. Poczatek took the child to the bedroom and laid him down on a pillow on the bed. The child was breathing heavily, so Poczatek went to get him a glass of water. Poczatek called his father, with whom he is very close. When Poczatek returned with the water, he no-ti'ced blood dripping from the child’s ear. Poczatek freaked out. When he hung up with his father, he decided to take the child directly to the hospital. He picked him up and took him to the car in the driveway. He called T.R. twice, and when she answered the second time, he told her that there had been an issue with C.R. He did not call 911 because he lived thirty to forty-five seconds from Naples Community Hospital. After he got to the car with C.R., T.R, returned and she and her friend got C.R. out of the car. Someone else had called EMS, which arrived shortly after T.R. arrived.

C.R. was taken to Fort Myers Hospital and then to Tampa, and Poczatek went to both hospitals. Two weeks later, Poczatek called T.R. and told her detailed information. He also called his father with that information. He never intended to cause C.R. any harm; he did not intentionally try to hurt C.R. or cause him any kind of injury. He would have never intentionally harmed C.R., and he had a good relationship with C.R.

On cross-examination, the State asked Poczatek if he knew he was supposed to call 911 if a child is unconscious, and Poc-zatek answered that the child was not unconscious. He admitted that if the child was unconscious, he should have called 911. He denied that when he normally babysat C.R., his father or mother was usually around, and he denied that three-year-olds bothered him. He said he “enjoyed the kid.” He admitted that “all these stories about [C.R.] falling off the steps and hitting the car” were untrue. He admitted lying to his own father, T.R., and the medical providers and that he did not tell T.R. and his father the truth until two weeks later. He lied because he did not want to disappoint his father.

C.R. was not dressed in his pajamas but was still wearing his daytime clothes. Poc-zatek admitted that T.R. was not the first person he called when C.R. was injured. Poczatek denied that C.R. did anything to make him mad or angry. When C.R. fell out of Poczatek’s hands, the back of C.R.’s head hit the stairs. Poczatek did not hit C.R. in the face, and C.R.’s face did not hit the floor. C.R. was not unconscious, but he was groaning and moaning. He could not stand on his own. At some point, his eyes closed and did not open again, which is when Poczatek took him to the car to take him to the hospital. Poczatek maintained that it was an accident. He admitted that it was stupid for him to swing the child.

The defense also presented the testimony of T.R., who said that when she dropped off C.R. at Poczatek’s house, Poc-zatek was planning to wash or detail his car.

The defense rested and then moved for a judgment of acquittal on the charge of neglect. Poczatek argued that there was insufficient evidence “that there was any act of [Poczatek] that could constitute an intentional act to cause harm.” The State responded that it presented, evidence of “his failure to supervise the child or get him to the hospital timely” and that that was “enough evidence for this to go in front of the jury.” The State argued that there was a period of time during which Poczatek did not seek medical care for the child. The defense argued that there was “nothing at all from any of the medical experts to say that any delay from the second this occurred, until the time that the EMS arrived, caused any additional damage or other problems with this child.” The defense further argued that there was no evidence that Poczatek’s actions in failing to call 911 were either willful or culpable negligence. The trial court denied the motion.

On count one, the jury found Poczatek guilty of felony battery, the lesser included offense of aggravated child abuse, and on count two, the jury found him guilty of the charged offense of aggravated child neglect. The trial court sentenced Poczatek to five years in prison on the felony battery. On count two, the trial court sentenced him to ten years in prison followed by five years’ probation, to run concurrently with the sentence on count one.

II. Analysis

On appeal, Poczatek contends that the trial court erred in denying his motion for judgment of acquittal on count two because the State failed to present any evidence that he willfully or by culpable negligence failed or omitted to provide C.R. with care or services necessary to maintain C.R.’s health and that Poczatek’s failure or omission resulted in great bodily harm, permanent disability, or disfigurement.

We review de novo the denial of a motion for judgment of acquittal. Pagan v. State, 830 So.2d 792, 803 (Fla. 2002). “A motion for judgment of acquittal is designed to challenge the legal sufficiency of the evidence.” State v. Odom, 862 So.2d 56, 59 (Fla. 2d DCA 2003) (citing State v. Williams, 742 So.2d 509, 510 (Fla. 1st DCA 1999)). The State is required to prove every element of an offense, and when it has failed to do so, “the case should not be submitted to the jury[ ] and a judgment of acquittal should be granted.” Baugh v. State, 961 So.2d 198, 204 (Fla. 2007) (quoting Williams v. State, 560 So.2d 1304, 1306 (Fla. 1st DCA 1990)).

The State charged Poczatek with both aggravated child abuse and aggravated child neglect in violation of section 827.03, Florida Statutes (2013). With regard to aggravated child neglect, section 827.03(2)(b) provides that “[a] person who willfully or by culpable negligence neglects a child and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the child commits a felony of the second degree.”

The State’s theory of aggravated child neglect was that Poczatek failed to obtain medical services or treatment for C.R. after C.R. initially sustained the injuries. However, the State did not present any evidence that Poczatek acted or failed to act in a way that caused further harm to C.R. after he suffered the initial injuries. The State’s evidence focused on C.R.’s injuries that were the result of an impact and Poczatek’s role in that impact, but there was no evidence from which the jury could have found that Poczatek’s actions after the incident exacerbated the injury in any way. In other words, there was no evidence that Poczatek’s conduct after the incident caused “great bodily harm, permanent disability, or permanent disfigurement” to C.R. Thus, the trial court erred in denying Poczatek’s motion for judgment of acquittal on the charge of aggravated child neglect because the injury element of that offense was not proven.

We also conclude that the State failed to present evidence that Poczatek willfully or by culpable negligence neglected the child, i.e., that Poczatek committed the lesser included offense of child neglect. See § 827.03(2)(d) (“A person who willfully or by culpable negligence neglects a child without causing great bodily harm, permanent disability, or permanent disfigurement to the child commits a felony of the third degree ....”); § 924.34, Fla. Stat. (2013) (providing that “[w]hen the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty ..., the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense” that was sufficiently proven). Relevant to the facts of this case, “[n]eglect of a child” means “[a] caregiver’s failure or omission to provide a child with the care, supervision, and services necessary to maintain the child’s physical and mental health, including, but not limited to ... supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the child.” § 827.03(l)(e)(l). “[N]eglect of a child may be based ... on a single incident or omission that results in, or could reasonably be expected to result in, serious physical or mental injury, or a substantial risk of death, to a child.” § 827.08(l)(e).

Even where the incident or omission could reasonably be expected to result in serious injury or death to the child, “that ‘neglect’ becomes criminal only when the State proves that the caregiver has acted ‘willfully or by culpable negligence.’ ” Arnold v. State, 755 So.2d 796, 797 (Fla. 2d DCA 2000). “[Wjillfully” means that the defendant “acted voluntarily and consciously, not accidentally.” Id. at 798. “[C]ulpable negligence is more than a failure to use ordinary care for others. For negligence to be called culpable negligence, it must be gross and flagrant [and] committed with an utter disregard for the safety of others.” Burns v. State, 132 So.3d 1238, 1240 (Fla. 1st DCA 2014) (quoting Fla. Std. Jury Instr. (Crim.) 16.5). By its language in section 827.03, “the legislature has demanded that the State prove more than mere negligence to criminalize child neglect. And the legislature has required that the defendant’s acts or omissions create a ‘reasonably expected’ potential for the child to suffer, at a minimum, serious injury.” Arnold, 755 So.2d at 797. “[OJnly the most egregious conduct, done either willfully or with criminal culpability, should be criminalized.” Id. at 798.

The State’s evidence demonstrated that the child suffered an injury in the care of Poczatek, but the State did not present evidence that Poczatek willfully or by culpable negligence neglected the child after he suffered the injury. C.R. was in the care of Poczatek for approximately forty-five minutes. C.R.’s treating doctors testified that his injuries were caused by blunt force trauma. But the doctors also testified that a person who has suffered such injuries may not show symptoms immediately; it may take minutes to hours before the person shows symptoms. There was no evidence that Poczatek knew or should have known immediately that C.R. had a skull fracture or brain injury. There was evidence of blood in Poczatek’s bedroom, but it was consistent with Poczatek’s testimony that he took C.R. into the bedroom because the child was crying and hurt. In the bedroom, Poczatek noticed that C.R. was bleeding from his ear and would not open his eyes, and it was then that Poczatek decided that C.R. needed medical treatment. Poczatek then took C.R. to the car, and T.R. and her friend both testified that Poczatek had already placed the child in the car when they returned to the house.

We conclude that the evidence did not show that Poczatek voluntarily and consciously, or grossly and fragrantly, failed to seek necessary medical services for the child when such failure could have reasonably been expected to result in serious physical injury or a substantial risk of death to C.R. See Weeks v. State, 832 So.2d 954, 956 (Fla. 2d DCA 2002) (holding that defendant’s motion for judgment of acquittal should have been granted because there was no evidence “as to what ‘could reasonably be expected’ from the lack of dental care” that defendant failed to seek for her child); Burns, 132 So.3d at 1242 (holding that State did not prove child neglect based on defendant’s decision to call the child’s mother rather than 911 where the “only evidence in the record regarding a timeline was that the mother returned home within [ten] minutes of the call” and “[t]here was no ... evidence presented that [defendant] should have known [the child’s] injuries were so significant that any delay in calling 911 was likely to cause her death or great bodily hai’m”); cf. Moore v. State, 790 So.2d 489, 492 (Fla. 5th DCA 2001) (holding that trial court properly denied defendant’s motion for judgment of acquittal on charge of aggravated child neglect where defendant allowed the baby to fall in a manner which produced a skull fracture and failed to seek medical assistance for baby in the two days following the injury even though defendant “recognize[d] that the baby was noticeably inactive” during those two days). While Poezatek’s failure to immediately seek medical treatment may have been negligent, it did not rise to the level of a willful act or culpable negligence.

Accordingly, we reverse Poezatek’s judgment and sentence for the offense of aggravated child neglect and remand for entry of a judgment of acquittal on that count. We affirm his judgment and sentence for felony battery.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and CRENSHAW, JJ., Concur.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    Julie ATHA, Appellant, v. ALLEN P. VAN OVERBEKE, D.M.D., P.A., a Florida Corporation, Appellee.
    Case No. 2D16-131
    District Court of Appeal of Florida, Second District.
    Opinion filed March 10, 2017.

      Jeffrey E. Appel and Claude McEuen Harden, III, of Appel Harden Law Group, Lakeland, for Appellant.
    S. Gordon Hill and Jeffrey J. Wilcox of Hill, Ward & Henderson, P.A., Tampa, for Appellee.
   SILBERMAN, Judge.

Julie Atha seeks review of the order dismissing her second amended complaint against her former employer, Allen P. Van Overbeke, D.M.D., P.A., with prejudice. The trial court determined that Atha failed to plead a facially sufficient violation of section 440.205, Florida Statutes (2011), for workers’ compensation retaliation. We conclude that the complaint as a whole pleaded a legally sufficient violation of section 440.205 and reverse.

Florida Rule of Civil Procedure 1.110(b) provides that in order to be legally sufficient, a complaint must contain “a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.” See also Ferguson Enters., Inc. v. Astro Air Conditioning & Heating, Inc., 137 So.3d 613, 615 (Fla. 2d DCA 2014). In ruling on a motion to dismiss for failure to plead a facially sufficient claim, the trial court is limited to a consideration of the allegations within the four corners of the complaint and is required to accept those allegations as true. Id. The court’s dismissal of a complaint for failure to state a cause of action is reviewed de novo. Id.

Section 440.205 provides, “No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law.” To establish a prima facie case of workers’ compensation retaliation under section 440.205, the plaintiff must prove the following elements: (1) a statutorily protected activity, (2) an adverse employment action, and (3) a causal connection between the statutorily protected activity and the adverse employment action. Andrews v. Direct Mail Express, Inc., 1 So.3d 1192, 1193 (Fla. 5th DCA 2009); Russell v. KSL Hotel Corp., 887 So.2d 372, 379 (Fla. 3d DCA 2004).

The operative complaint in this case is Atha’s second amended complaint. Atha alleged that she had worked full time for Van Overbeke as a dental assistant since June 2009. On November 21, 2012, she suffered an injury to her right hand and elbow at work. Atha requested medical treatment and payment for lost wages under the Workers’ Compensation Act. Van Overbeke’s insurance carrier evaluated Atha’s claim and authorized medical treatment for her work-related injuries on November 27, 2012.

Atha had surgery on February 18, 2013, and she received temporary disability benefits under the Act from the time of surgery through her recovery. Atha’s physician released her to return to full-time work as a dental assistant on June 6, 2013. Van Overbeke refused to return Atha to full-time status and offered her only one shift per week. Three weeks later, Van Overbeke terminated Atha’s employment despite the fact that it still had a position available that Atha could perform.

The second amended complaint alleged that Atha’s request for workers’ compensation benefits constituted statutorily protected activity, and there is no dispute that Atha met the pleading requirement for the first element. As for the second element, Van Overbeke concedes that the reduction in hours and subsequent termination from employment constitute adverse employment actions.

It is the third element, or the causal connection element, that is at issue here. A plaintiff can establish the causal connection element “by showing the protected activity and the adverse action are not completely unrelated.” Ortega v. Eng’g Sys. Tech., Inc., 30 So.3d 525, 529 (Fla. 3d DCA 2010); see also Russell, 887 So.2d at 379. The temporal connection between the protected activity and the adverse employment action in itself might be sufficient to establish a causal connection, but the temporal proximity must be “close.” Ortega, 30 So.3d at 529 (quoting Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004)); see also Edwards v. Niles Sales & Serv., Inc., 439 F.Supp.2d 1202, 1229 (S.D. Fla. 2006) (“The cases that accept mere temporal proximity between an employer’s knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima fade case uniformly hold that the temporal proximity must be ‘very close.’” (quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001))).

In her second amended complaint, Atha made the following additional allegations to establish the causal connection element:

12. Immediately following her injury, however, [Van Overbeke] began an unlawful course of intimidation and coercion by intentionally refusing to allow [Atha] to continue to work despite having work available that [Atha] was able to perform.
18. [Van Overbeke’s] action of discharging [Atha] was in retaliation for [Atha] engaging in her statutorily protected right to workers’ compensation benefits and in violation of Section 440.205, Florida Statutes (2011).

Taken in conjunction with the ultimate facts alleged in the remainder of the second amended complaint, Atha’s allegations can be read to establish that Van Over-beke was aware of her request for workers’ compensation benefits from the time she stopped working to obtain treatment for her work-related injuries. From that time until it terminated her employment, Van Overbeke engaged in actions that demonstrated a negative attitude toward Atha’s workers’ compensation claim. When Atha was released to return to full-time work, Van Overbeke reduced her hours and then terminated her employment in retaliation for filing her workers’ compensation claim.

We conclude that these allegations, which we are required to accept as true, are sufficient to establish that the statutorily protected activity (Atha’s request for workers’ compensation benefits) and the adverse employment action (the reduction in hours and subsequent termination from employment) are not completely unrelated. Cf. Hornfischer v. Manatee Cty. Sheriffs Office, 136 So.3d 703, 709-10 (Fla. 2d DCA 2014) (holding that the plaintiff established the causal connection element due to “the questionable nature of the reasons offered for [the plaintiff’s] discharge, together with the e-mails reflecting a negative attitude by the [defendant’s] agents toward [the plaintiff] and his claims”). Atha thus pleaded a legally sufficient violation of section 440.205, and the trial court erred by dismissing her second amended complaint with prejudice.

Reversed and remanded.

CASANUEVA and SLEET, JJ., Concur.

      . In light of our decision, we need not address Atha's argument that the temporal connection between Atha’s request for workers' compensation benefits and the reduction in hours and subsequent termination from employment in itself is close enough to establish a causal connection.


author: WOLF, J.

text:
    Charles HOWARD, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-2423
    District Court of Appeal of Florida, First District.
    Opinion filed March 10, 2017
    Andy Thomas, Public Defender, and Su-sannah C. Loumiet, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant was convicted by a jury of selling, manufacturing, or delivering cocaine, a controlled substance, within 1,000 feet of a physical place of worship. He challenges various aspects of his judgment and sentence, but we find only two of the issues he raised have merit, both regarding discretionary fees and costs imposed upon him. While we affirm the judgment and sentence in all other respects, we reverse and remand for the trial court to strike the assessment of a $500 “jury fee” and the $150 discretionary portion of the public defender fee, although the court may reimpose the discretionary portion of the public defender fee if it follows the proper statutory procedure.

I. The $500 “Jury Fee”

The trial court indicated during the sentencing hearing that it believed it had the right to impose a fee upon appellant for exercising his right to a jury trial:

... I do not believe it appropriate to sanction somebody for electing their constitutional right. I do, as is well-known, reserve the prerogative to impose a jury cost to cases that go to trial, and that may be viewed by some as a sanction for going to trial. It’s not. But I do believe that’s an appropriate cost to assess in a jury trial where there’s a finding against the defendant. But my determination as to what a proper sentence will be has nothing to do with the fact he went to trial.

The court then imposed a $500 “jury fee,” believing that such a fee in a criminal case was not a sanction against appellant for electing his constitutional right to go to trial. We disagree.

In the analogous case Herman v. State, 161 So.3d 452, 453-54 (Fla. 5th DCA 2014), the Fifth District found that a $1,000 “jury fee” was unconstitutional, reasoning that “a trial court may not impose a fine simply because the defendant exercised his or her right to a trial,” and that “ ‘[a]ny judicially imposed penalty which needlessly ... deters the exercise of the Sixth Amendment right to demand a jury trial is patently unconstitutional.’” Id. (quoting Wilson v. State, 845 So.2d 142, 150 (Fla. 2003)).

In addition to agreeing that a “jury fee” unconstitutionally sanctions a defendant’s right to a jury trial in criminal cases, we note that there is no statutory authority for such a “jury fee” in criminal cases. See Williams v. State, 596 So.2d 758, 758-59 (Fla. 2d DCA 1992). As such, we hold that the $500 “jury fee” imposed upon appellant was improper and strike that assessment against him.

II. The $250 Public Defender Fee

Appellant also challenges the $250 public defender fee imposed against him, which was in addition to the $50 public defender application fee. Appellant alleges the trial court failed to advise him of his right to challenge the fee, which exceeded the minimum fee required by statute. We agree.

Pursuant to section 938.29(l)(a), Florida Statutes (2014), attorney’s fees and costs for a convicted defendant who received the assistance of the public defender’s office should be “no less than $100 per case when a felony offense is charged.” However, “[t]he court may set a higher amount upon a showing of sufficient proof of higher fees or costs incurred” if, after the court determines the value of the public defender’s services, the defendant receives “adequate notice thereof’ and is afforded the “opportunity to be heard and offer objection to the determination, and to be represented by counsel.” § 938.29(5), Fla. Stat.

Here, the State concedes that although the trial court properly announced the value of the fee—$250—the trial court failed to inform appellant that he had the right to be heard regarding the $150 discretionary portion of the fee.

We agree, and, therefore, reverse the imposition of the discretionary portion of the public defender fee. The court may reimpose the discretionary portion of the fee but only after following the appropriate procedure. We affirm the judgment and sentence in all other respects.

ROBERTS, C.J., and B.L. THOMAS, J., CONCUR.


author: SALARIO, Judge.

text:
    LANDMARK FUNDING, INC, derivatively ON BEHALF OF NAPLES SYNDICATIONS, LLC, Appellant, v. Amir CHALUTS; 951 Holdings SW FL, LLC; Robert Singer; Naples Snydications; Troy Peter Van Haastrecht; Gordon Victor Buck; Argo US, LLC; Argo Warm Springs, LLLP; Linda Singer; and Jesse Singer, Appellees.
    Case No. 2D15-4188
    District Court of Appeal of Florida, Second District.
    Opinion filed March 15, 2017.

      Juan J. Rodriguez and David M. Levine of Carey Rodriguez Milian Gonya, LLP, Miami, for Appellant.
    James A. Boatman, Jr., of The Boatman Law Firm, P.A., Naples, for Appellees Amir Chaluts and 951 Holdings SW FL, LLC.
    Jeffrey B. Shalek of Phillips, Cantor, Shalek, Rubin & Pfister, P.A., Hollywood for Appellees Robert Singer, and Naples Syndications.
    No appearance' from remaining Appel-lees.
   SALARIO, Judge.

Landmark Funding, Inc., the plaintiff in a limited liability company member’s derivative action brought on' behalf of Naples Syndications, LLC, appeals from an order dismissing the suit based on its alleged lack of standing. Because the trial court looked beyond the four comers of the verified complaint in determining that Landmark lacked standing to sue derivatively on Naples Syndications’ behalf, we reverse.

We review a trial court’s order dismissing a complaint de novo. Mortg. Elec. Registration Sys., Inc. v. Azize, 965 So.2d 151, 153 (Fla. 2d DCA 2007). “A motion to dismiss ... tests the legal sufficiency of a complaint to state a cause of action and is. not intended to determine issues of ultimate fact.” McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, P.A. v. Weiss, 704 So.2d 214, 215 (Fla. 2d DCA 1998). As such, when passing on a motion to dismiss, the trial court “is limited to considering the four corners of the complaint along with the attachments incorporated into the complaint.” Neapolitan Enters., LLC v. City of Naples, 185 So.3d 585, 589 (Fla. 2d DCA 2016); see also McWhirter, 704 So.2d at 215 (“[T]he trial court must confine itself strictly to the allegations within the four corners of the complaint.”).

Under the Florida Revised Limited Liability Company Act, the nominal plaintiff in a member’s derivative action may maintain the suit only if (1) it is a member of the LLC at the time of suit and (2) it was -a member at the time of the conduct giving rise to the suit or obtained its membership interest from someone who was a member at that time. See § 605.0803, -Fla. Stat. (2014). The operative complaint in this case alleged ultimate facts demonstrating Landmark’s membership both at the time of the suit and at the time of the alleged misconduct. The complaint contained no attachments that contradicted those allegations. As such, it was legally sufficient insofar as Landmark’s standing is concerned and not properly subject to a motion to dismiss on that basis. See Dingle v. Dellinger, 134 So.3d 484, 490-92 (Fla. 5th DCA 2014) (reversing dismissal of legal malpractice complaint that alleged ultimate facts showing that plaintiffs had standing as intended third-party beneficiaries); cf. Save Homosassa River All., Inc. v. Citrus Cty., 2 So.3d 329, 342 (Fla. 5th DCA 2008) (Pleus, J. dissenting) (noting requirement that complaint allege ultimate facts showing the plaintiff’s standing (citing Fla. R. Crim. P. 1.110(b); Williams v. Howard, 329 So.2d 277 (Fla. 1976))).

The trial court nonetheless found that Landmark was judicially estopped from asserting its standing because its principal made inconsistent statements concerning his and Landmark’s relationship to Naples Syndications in an earlier bankruptcy case and two prior lawsuits. Relying on our decision in Veal v. Voyager Property & Casualty Insurance Co., 51 So.3d 1246 (Fla. 2d DCA 2011), and the Fourth District’s decision in One Call Property Services, Inc. v. Security First Insurance Co., 165 So.3d 749 (Fla. 4th DCA 2015), the trial court held that it could consider records from those proceedings on a motion to dismiss because they had been impliedly incorporated into Landmark’s derivative complaint. That was error. The derivative complaint mentions only one of these proceedings, and neither Landmark’s standing nor the merits of its claims as pleaded in the derivative complaint are in any way based or dependent upon the records from them. Of. One Call, 165 So.3d at 752 (holding that trial court properly determined that an insurance policy was impliedly incorporated where “[t]he complaint refers to the policy, and One Call’s standing to bring suit is premised on an assignment of the policy”); Veal, 51 So.3d at 1249 (holding that the complaint impliedly incorporated the terms of a settlement agreement where “the complaint refers to the settlement agreement, and in fact, Veal’s standing to bring suit is premised on the terms of that agreement”). The concept of implied incorporation provided no basis for the trial court to go outside the four corners of the complaint and its exhibits in this case.

Moreover, even if the trial court could have considered documents from the prior proceedings, its determination that judicial estoppel precluded Landmark from pleading its standing would have remained incorrect. Judicial estoppel applies when a party in a current proceeding has successfully maintained an inconsistent position in a prior proceeding to the prejudice of the adverse party in the current proceeding. See Blumberg v. USAA Cas. Ins. Co., 790 So.2d 1061, 1066 (Fla. 2001) (citing Chase & Co. v. Little, 116 Fla. 667, 156 So. 609, 610 (1934)). Determining that Landmark was judicially estopped thus required not only a showing of inconsistent statements, but also the identity of parties (or an exception to that requirement), the successful maintenance of the inconsistent position, and prejudice. See id.; Grau v. Provident Life & Accident Ins. Co., 899 So.2d 396, 400 (Fla. 4th DCA 2005). With the exception of inconsistency, the trial court did not determine that any of these elements are present. Nor, at least based on the record before us, could the trial court have made such determinations. As such, the trial court was incorrect, at this phase of the case, to hold that judicial estoppel precluded Landmark’s assertion of standing to maintain a derivative action.

None of this is to say that Landmark has standing or that judicial estoppel does not apply. A properly timed and supported motion for summary judgment may well terminate the case. It was premature, however, to resolve these issues on the motions to dismiss that were tendered by the parties in defense to Landmark’s complaint. Accordingly, the dismissal order is reversed, and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

SILBERMAN and KELLY, JJ., Concur.

      . Apart from implied incorporation, the ap-pellees have not asserted, either here or in tire trial court, that any other exception to the four-corners rule applies or that we should apply a standard other than the four-corners rule to an LLC member’s allegations of standing to maintain a derivative action.


author: WINSOR, J.

text:
    Joseph CHESTER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-5254
    District Court of Appeal of Florida, First District.
    Opinion filed March 15, 2017.

      Candice Brower, Regional Conflict Counsel, and Michael J. Titus, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   WINSOR, J.

This appeal presents two issues: whether the trial court should have granted the appellant’s motion for mistrial, and whether the trial court should have held a hearing to determine the appellant’s competency to stand trial. We affirm as to the first issue and reverse as to the second.

I.

Joseph Chester briefly lived with a childhood friend and that friend’s girlfriend. The girlfriend was unappreciative of Chester’s drinking, though, and the couple soon asked him to move out, which he did. Not long after that, the girlfriend awoke to find her back door open, her dogs on the loose, and her purse missing. While she was looking for her missing purse, her bank called to report suspicious activity on her credit card. The last she knew, that card had been in her now-missing purse. Alleging that Chester broke into his former residence, stole the purse, and used the card, the State charged Chester with burglary of a dwelling, fraudulent use of a credit card, and felony theft.

Chester admitted he used the credit card (he needed gas and cigarettes), and he admitted he had no business doing so. He pleaded no contest to fraudulent use of a credit card, but he went to trial on the remaining charges. He testified that he found the credit card in his van—not in a purse, and not in the house. And he testified that he never broke into the house. The jury did not believe him. It convicted him of both burglary and felony theft.

As Chester explains on appeal, his credibility was a critical issue at trial. The State argued below that the jury should disbelieve Chester because, among other things, he had twelve felony convictions. But the State also took the improper step of highlighting Chester’s earlier refusal to talk to police. When Chester first offered his defense about finding the credit card in the van, the State directly asked whether he had ever told authorities that story before. (He had not. He had instead earlier invoked his right to remain silent.)

The State’s question was improper. See Moss v. State, 169 So.3d 223, 229 (Fla. 1st DCA 2015) (“[A] comment by a prosecutor that the defendant has not before offered the explanation of events he offers at trial is improper.”); Floyd v. State, 129 So.3d 1214, 1214-15 (Fla. 1st DCA 2014) (holding that prosecutor’s questioning about why defendant did not earlier give self-defense theory to police “clearly constituted comments on the [defendantj’s right to remain silent”). Therefore, the trial court was correct in sustaining the immediate objection (before Chester answered) and in instructing the jury to disregard the question. The issue here is whether the trial court abused its discretion in denying Chester’s subsequent motion for mistrial. See Fitzpatrick v. State, 900 So.2d 495, 516 (Fla. 2005) (noting that orders denying mistrials are reviewed only for an abuse of discretion).

A trial court should grant a motion for mistrial “only when it is necessary to ensure that the defendant receives a fair trial.” Cole v. State, 701 So.2d 845, 853 (Fla. 1997). Even when a prosecutor makes an improper comment on a defendant’s right to remain silent, a trial court does not abuse its discretion in denying a mistrial where the comment “was not ‘so prejudicial as to vitiate the entire trial.’ ” Poole v. State, 997 So.2d 382, 391 (Fla. 2008) (quoting Dessaure v. State, 891 So.2d 455, 464-65 (Fla. 2004)); see also Rodriguez v. State, 753 So.2d 29, 39 (Fla. 2000) (noting “it is well settled that such erroneous comments do not require an automatic reversal” and affirming trial court’s denial of motion for mistrial).

We find that the trial court did not abuse its discretion in denying the motion. The isolated remark was met with an immediate objection, and the trial court provided an appropriate curative instruction. Under the particular facts of this case, the comment was not “so prejudicial as to vitiate the entire trial.” Poole, 997 So.2d at 391; cf. also Goodwin v. State, 751 So.2d 537, 547 (Fla. 1999) (noting “it is necessary to determine whether the single improper remark, to which the trial court sustained an objection and gave a curative instruction, was so prejudicial as to deny defendant a fair trial”).

II.

Next, we consider Chester’s argument that the trial court should have ruled on his competency. Before trial, Chester had a competency evaluation, but the trial court never affirmatively decided the issue of competency. Instead, Chester’s attorney told the judge at a pretrial hearing that “the doctor determined that he is competent.” The parties then agreed to a trial date.

“[Ojnce a trial court has reasonable grounds to question competency, the court ‘has no choice but to conduct a competency hearing.’ ” Cotton v. State, 177 So.3d 666, 668 (Fla. 1st DCA 2015) (quoting Monte v. State, 51 So.3d 1196, 1202 (Fla. 4th DCA 2011)); see also Fla. R. Crim. P. 3.210(b). Here, the record includes no order requiring an evaluation, no evaluation report, and no hint of what led to the evaluation in the first place. Nonetheless, the court conducted what the docket referred to as a “mental health hearing,” and it heard counsel’s representation that there had been an evaluation. It therefore appears that the trial court had—at least at some point—some reasonable basis to question Chester’s competency. We therefore consider the sufficiency of the hearing.

At any competency hearing, the court “must make its own independent finding of competence or incompetence,” although it need not always receive testimony. Zem v. State, 191 So.3d 962, 964 (Fla, 1st DCA 2016). The court may not simply accept a stipulation, even when the mental health experts and lawyers agree the defendant is competent. Id. (“[A]ccep-tance of a stipulation is improper even when all the experts have opined that the defendant is competent, as other evidence may indicate incompetence.”). Here, the trial court made no independent finding, and as the State concedes, we must reverse.

As in other cases that presented the same error, we remand for a retroactive determination, if possible. See Zern, 191 So.3d at 965; Reynolds v. State, 177 So.3d 296, 299 (Fla. 1st DCA 2015); Cotton, 177 So.3d at 668-69; Brooks v. State, 180 So.3d 1094, 1095-96 (Fla. 1st DCA 2015). If the court finds that Chester was competent, it should enter an appropriate order nunc pro tunc, and Chester’s conviction and sentence will stand. If the court finds Chester was not competent—or if the trial court is unable to make a retroactive determination—Chester will be entitled to a new trial if and when competent to proceed.

AFFIRMED in part, REVERSED in part, and REMANDED.

ROBERTS, C.J., and JAY, J., CONCUR.

       Although there is no such order in this record, the State asserts in its brief that "an expert was appointed to evaluate the Appellant for his competency.” State Br. at 13.


author: PER CURIAM.

text:
    Joyce RAY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2056
    District Court of Appeal of Florida, Second District.
    Opinion filed March 15, 2017

      Joyce Ray, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Chelsea S. Alper, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Joyce Ray appeals the order on her motion for jail credit filed under Florida Rule of Criminal Procedure 3.801. We affirm in part and reverse in part.

In ease number CRC10-25468CFANO, the trial court sentenced Ray to three years’ imprisonment to be served consecutively to her concurrent five-year terms of imprisonment in two other cases. All of the sentences were imposed in 2014. In 2016, Ray filed post-conviction motions in all three cases; she sought additional jail credit in case number CRC10-25468CFANO. In its order on Ray’s motions, the postconviction court stated that it had discovered that her sentence in ease number CRC10-25468CFA-NO erroneously included an award of jail credit, and it sua sponte rescinded that jail credit. This was error. The postconviction court had no authority to rescind jail credit on its own motion after the credit was awarded; doing so violated Ray’s double jeopardy rights.

[A] trial court has no authority to rescind a defendant’s jail credits after the sixty-day period for modifying a sentence provided in Florida Rule of Criminal Procedure 3.800(c), even when the jail credits were improperly awarded. The award of improper jail credits does not make the defendant’s sentence illegal and therefore subject to modification at any time. Moreover, any attempt to rescind jail credits already awarded constitutes an enhancement of the defendant’s sentence that violates the prohibition against double jeopardy.

Bailey v. State, 777 So.2d 995, 996 (Fla. 2d DCA 2000) (citing Linton v. State, 702 So.2d 236, 237 (Fla. 2d DCA 1997)); see also Lebron v. State, 870 So.2d 165, 165 (Fla. 2d DCA 2004) (holding that the trial court did not have authority to sua sponte amend Lebron’s sentence to decrease the award of jail credit); Washington v. State, 199 So.3d 1110, 1112 (Fla. 1st DCA 2016) (reversing Washington’s sentences that were sua sponte amended by the trial court to decrease the award of jail credit; “[W]e prohibit the rescission of jail credit, even when it was awarded in error.”).

Accordingly, we reverse the postconviction court’s order rescinding jail credit in case number CRC10-25468CFANO and remand for correction of the sentence to include the rescinded jail credit; we affirm the order in all other respects. Because the record before this court indicates that Ray completed her consecutive sentences last year, we order that she be discharged immediately.

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

KELLY, WALLACE, and CRENSHAW, JJ„ Concur.

      . Ray also filed postconviction motions in those cases; the postconviction court disposed of all of the motions in the order here appealed. However, Ray’s issue on appeal concerns only case number CRC10-25468CFANO.


author: EMAS, J.

text:
    Daniel SCALA, Appellant, and Alan Weitz, Appellant/Cross-Appellee, v. The STATE of Florida, Appellee/Cross-Appellant.
    Nos. 3D11-1979, 3D11-1754, 3D11-1675
    District Court of Appeal of Florida, Third District.
    Opinion filed March 15, 2017.

      Richard C. Klugh, for appellants/cross-appellee.
    Pamela Jo Bondi, Attorney General, and Shayne R. Burnham and Gabrielle Raemy Charest-Turken, Assistant Attorneys General, for appellee/cross-appellant.
    Before SALTER, EMAS and LOGUE, JJ.
   EMAS, J.

Appellants Daniel Scala and Alan Weitz appeal from their convictions, judgments and sentences for first-degree grand theft. The State of Florida cross-appeals the downward departure sentence imposed on Alan Weitz.

Appellants raise a number of claims in this appeal, including: errors allegedly made during jury selection, in evidentiary rulings by the trial court regarding central witness testimony and key exhibits, insufficiency of the evidence, and improper closing argument by the State. We need not belabor this opinion with a recitation of the lengthy history of these 2005 prosecutions and 2011 trial. Regrettably, the transcripts of the trial are, in numerous and substantial passages throughout the proceedings, inaccurate, incomplete, contradictory and indecipherable.

This appeal was formally stayed or otherwise delayed for more than four years as a result of the pervasive errors, omissions and inadequacies of the transcripts. During this four-year hiatus, the parties and the trial court attempted valiantly to reconstruct these portions of the record, without success. After several hearings on the matter, the trial court determined that there was no “means to reliably correct substantial defects in the trial and hearing transcripts” based upon “the extent and nature of the errors, the inability of the parties and the court reporting firm to locate the court reporter, the existence of equivalent errors and omissions in the court reporter’s original notes such that no new transcript would be different than the present version, and the passage of time that make any attempt to recall any substantial portion of the record unrealistic.”

Upon our independent review, we conclude that appellants have met their burden of establishing that the transcripts contain pervasive and substantial errors, omissions, inconsistencies, and inaccuracies. We further conclude that appellants have demonstrated they are prejudiced by the inability to reconstruct portions of the transcripts that bear directly on the claims raised in this appeal. See Jones v. State, 923 So.2d 486, 489 (Fla. 2006) (holding that, to be entitled to a new trial based upon the absence of an accurate and complete transcript, the defendant must “demonstrate that there is a basis for a claim that the missing transcript would reflect matters which prejudice the defendant”). The unintelligible condition of the relevant and necessary portions of the record precludes this court from providing adequate and meaningful review of appellants’ claims, compelling us to reverse and remand for a new trial. Delap v. State, 350 So.2d 462 (Fla. 1977); Murphy v. State, 789 So.2d 1235 (Fla. 3d DCA 2001); Morgan v. State, 117 So.3d 79 (Fla. 2d DCA 2013); Thomas v. State, 828 So.2d 456 (Fla. 4th DCA 2002); Smith v. State, 801 So.2d 198 (Fla. 4th DCA 2001); McKenzie v. State, 754 So.2d 851 (Fla. 2d DCA 2000).

Because we are reversing and remanding this case for a new trial, we address some of the improper comments made by the State during its closing argument, to ensure as best we can that such improper arguments are not repeated at a new trial. The most egregious of these improper comments included the following argument by the prosecutor in rebuttal:

[PROSECUTOR]: You know there is an old saying among lawyers probably older than I am. When the facts are against you argue the law. When the law is against you argue the facts. When they are both against you blame the prosecutor, The evidence in this case, the law in this case both clearly lead you, and your common since (sic) to the escapable (sic) conclusion that these defendants committed grand theft. The defendants want to talk about everything accept (sic) the evidence.
You know as a prosecutor I take an oath and have an obligation—affirmative obligation everyday I work. I work everyday I walk into court to only argue those things that I know are in good faith are (sic) true. The defense lawyers in this case didn’t find themselves so bound.

The highlighted paragraph of the prosecutor’s closing argument is clearly improper, as it attacks and denigrates defense counsel, implying at the very least that defense counsel is not acting in good faith, and suggesting at the very worst that defense counsel lied to the jury—and that defense counsel was free to do so because he is not bound by the same obligation and professional oath as the prosecutor. See, e.g., Evans v. State, 177 So.3d 1219, 1237 (Fla. 2015) (condemning comments in which prosecutor ridiculed defense counsel’s argument, telling the jury “only in a world populated by defense attorneys would that [argument] be true”); Owens Corning Fiberglas Corp. v. Morse, 653 So.2d 409 (Fla. 3d DCA 1995) (holding derogatory comments attacking the integrity of opposing counsel improper); Sun Supermarkets, Inc. v. Fields, 568 So.2d 480 (Fla. 3d DCA 1990) (reversing for new trial where counsel continuously argued to the jury that defense counsel had lied and had committed a fraud upon the court and jury); Jackson v. State, 421 So.2d 15, 16 (Fla. 3d DCA 1982) (reversing for new trial based upon multiple personal attacks on defense counsel, culminating in prosecutor asking jury rhetorically: “Would you buy a used car from this guy?”); Ryan v. State, 457 So.2d 1084 (Fla. 4th DCA 1984)

(condemning closing arguments which, inter alia, described defense counsel as “hiding the ball,” and arguing to the jury that defense counsel “is not being honest with you”); Briggs v. State, 455 So.2d 519, 521 (Fla. 1st DCA 1984) (holding “verbal attacks on the personal integrity of opposing counsel ... are wholly inconsistent with the prosecutor’s role”).

The State contends on appeal that this argument was an “invited comment” or “fair reply” to defense counsel’s closing argument reference to the prosecutor as a “persecutor.” We do not have the benefit of a complete transcript of the closing arguments. However, even if the defense had made such a comment, the prosecutor’s response was nevertheless improper. The proper response would have been to contemporaneously object to the defense’s characterization and request a curative instruction to the jury and an appropriate admonishment to defense counsel. As Judge Sorondo explained in his concurring opinion in Fryer v. State, 693 So.2d 1046, 1051 (Fla. 3d DCA 1997):

The doctrine of invited comment does not contemplate that a prosecutor will sit silently while defense counsel pursues an impermissible line of argument so that he or she can then pursue his or her own impermissible and highly prejudicial response. In order to avail himself of the doctrine of invited comment the prosecutor in this case was obligated to object to the improper comments as they were made so that the trial judge could impose timely restrictions on defense counsel. ...
Had the prosecutor in this case objected to defense counsel’s initial “I had a nightmare” comment, the trial judge could have sustained the objection and given a cautionary instruction to disregard the offensive comments and cautioned counsel about any further impermissible argument. ... Just as defense counsel must object to improper comments of the prosecutor in order to preserve them for appellate review, Huff v. State, 437 So.2d 1087 (Fla.1983); Sanders v. State, 638 So.2d 569 (Fla. 3d DCA 1994); Adams v. State, 585 So.2d 1092 (Fla. 3d DCA 1991); Thompson v. State, 318 So.2d 549 (Fla. 4th DCA 1975), so must a prosecutor object to defense counsel’s improper comments at trial in order to avail himself of the doctrine of invited comment.

The defense made a contemporaneous objection to the prosecutor’s improper argument, properly preserving this error. Although, given our disposition on other grounds, we do not reach the issue of whether this argument independently requires a new trial, we note that a merits review would have been conducted under the standard of harmless error, placing upon the State the burden of establishing that there is no reasonable possibility that the error contributed to the verdict. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986). We also note that the prosecutor compared appellants to bank robbers Bonnie and Clyde, and to Willy Sutton (described by the prosecutor as a “famous bank robber” in the 1920’s and 1930’s). While these comments drew no objection from the defense, these hyperbolic arguments are improper and unnecessary to achieve the legitimate purpose of a closing argument:

The proper exercise of closing argument is to review the evidence and to explicate those inferences which may reasonably be drawn from the evidence. Conversely, it must not be used to inflame the minds and passions of the jurors so that their verdict reflects an emotional response to the crime or the defendant rather than the logical analysis of the evidence in light of the applicable law.

Bertolotti v. State, 476 So.2d 130, 134 (Fla. 1985).

We do not seek to temper the prosecutor’s evident zeal, but only to ensure that such zeal is confined to the clear boundaries demarked by the evidence, the reasonable inferences therefrom, and the law applicable to the case. See Murphy v. Intern. Robotic Sys., Inc., 766 So.2d 1010, 1029 (Fla. 2000) (observing that the case law and the rules of professional conduct are “in place to ensure that juries render verdicts based on record evidence and applicable law, not based on impermissible matters interjected by counsel during closing argument.”) See also R. Regulating Fla. Bar 4-3.4(e) (providing: “A lawyer must not: ... e) in trial, state a personal opinion about the credibility of a witness unless the statement is authorized by current rule or case law, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the culpability of a civil litigant, or the guilt or innocence of an accused.”) As the United States Supreme Court observed more than 80 years ago, a prosecutor

is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935) (emphasis added).

We decline to reach the other arguments raised by appellants and, given our disposition of the appeal, we dismiss the State’s cross-appeal as moot.

Reversed and remanded for new trial. Cross-appeal dismissed as moot.

      . In the interest of accuracy, the saying appears to originate from a collection of poems, stories and yarns by Carl Sandburg:
      "If the law is against you, talk about the evidence," said a battered barrister. "If the evidence is against you, talk about the law, and, since you ask me, if the law and the evidence are both against you, then pound on the table and yell like hell.”
      Carl Sandburg, The People, Yes at 181 (Harc-ourt Brace & Co., First Harvest Edition, 1990). It has long since been adapted and paraphrased in a variety of ways, but not reportedly in the manner utilized by the prosecutor in the instant case.

      . • Further, if defense counsel had indeed made such an improper characterization, the trial court itself was obligated to intercede, even in the absence of an objection. As Judge Schwartz lamented three decades ago:
      Perhaps more important is the broader jurisprudential issue which is raised by cases like this. In our view, it is no longer—if it ever was—acceptable for the judiciary to act simply as a fight promoter, who supplies an arena in which parties may fight it out on unseemly terms of their own choosing, and then, on the ground that the loser has asked for what he received, obediently raise the hand of the one who emerges victorious. We demean ourselves and the system of justice we serve when we permit this to occur. In Schreier v. Parker, 415 So.2d 794, 795 (Fla. 3d DCA 1982), we gave notice that ”[a]rguments in derogation of Fla. Bar Code Prof. Resp. EC 7-24, DR 7-106(C)(3), (4) will not be condoned in this court, nor should they be condoned by the trial court, even absent objection. Hillson v. Deeson, 383 So.2d 732 (Fla. 3d DCA 1980).”
      Borden, Inc. v. Young, 479 So.2d 850, 851-52 (Fla. 3d DCA 1985). See also Jackson, 421 So.2d at 16 (and cases cited). Regrettably, to this day, attorneys persist in presenting patently improper arguments to the jury. See, e.g., Kaczmar v. State, No. SC13-2247 at *7, — So.3d -, 2017 WL 410214 (Fla. January 31, 2017); Sampson v. State, No, 3D15-1662, 213 So.3d 1090, 2017 WL 1018514 (Fla. 3d DCA March 15, 2017); Mora v. State, No. 3D15-1434, 211 So.3d 308, 2017 WL 608287 (Fla. 3d DCA Feb. 15, 2017); Burger King Corp. v. Lastre-Torres, 202 So.3d 872 (Fla. 3d DCA 2016); City of Miami v. Kinser, 187 So.3d 921 (Fla. 3d DCA 2016); Constant v. State, 139 So.3d 479 (Fla. 3d DCA 2014); Jennings v. State, 124 So.3d 257 (Fla. 3d DCA 2013) (Ernas, J., concurring in part and dissenting in part).

      . Additionally, the prosecutor told the jury, on at least two occasions, that the defense attorneys were "simply blowing smoke in your face.” Such characterizations denigrate opposing counsel and are improper. See, e.g., Howard v. State, 152 So.3d 825, 829 (Fla. 2d DCA 2014) (holding "comments that 'impugn the integrity or credibility of opposing counsel’ are fundamental error by themselves” (quoting Wicklow v. State, 43 So.3d 85, 88 (Fla. 4th DCA 2010)); Brown v. State, 733 So.2d 1128 (Fla. 4th DCA 1999) (holding prosecutor’s ridiculing defendant’s theory of defense as a "smoke screen” improper); Olbek v. Kraut, 650 So.2d 1138, 1138 (Fla. 5th DCA 1995)(Griffin, J., concurring)(condemning comment characterizing opposing counsel’s arguments as "smoke and mirrors”); Redish v. State, 525 So.2d 928 (Fla. 1st DCA 1988) (holding prosecutor's reference in closing argument to defense counsel’s "cheap tricks” was beyond bounds of proper closing argument); Waters v. State, 486 So.2d 614 (Fla. 5th DCA 1986) (holding repeated references to defense’s closing argument as “misleading” and "a smoke screen” were improper). But see Ham v. State, 580 So.2d 868 (Fla. 3d DCA 1991) (holding that, when read in full context, "smoke screen” comment by prosecutor was not a denigration of the defense, and, even assuming it was improper, was harmless error.)


text:
    Anthony SAMPSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-1662
    District Court of Appeal of Florida, Third District.
    Opinion filed March 15, 2017.

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   EMAS, J.

Anthony Sampson appeals his convictions and sentences for second-degree murder, armed robbery and grand theft.

Sampson was charged by information with second-degree murder with a deadly weapon, burglary, robbery with a deadly weapon, and grand theft of a vehicle. Sampson acknowledged that he took valuables from the victim’s home and stole the victim’s car. However, Sampson’s defense at trial was that he was guilty only of the lesser included charges of manslaughter (rather than second-degree murder) and theft (rather than robbery). Following the trial, Sampson was convicted of second-degree murder, robbery and grand theft.

On appeal, Sampson contends that certain comments made by the prosecutor during closing arguments (which comments were either not objected to or were otherwise not properly preserved), constituted fundamental error, requiring a new trial. We affirm, concluding that the prosecutor’s arguments, while improper, did not constitute fundamental error. However, we find it necessary to write to address once again another instance in which improper comments have been made by a prosecutor in the course of closing argument. In doing so, we wish to emphasize to counsel that our affirmance of the convictions in no way validates such misconduct nor somehow renders it merely “awful but lawful.”

As a general rule, the failure to raise a contemporaneous objection to improper closing arguments waives appellate review of error on that basis. McDonald v. State, 743 So.2d 501, 505 (Fla. 1999). The sole exception to this procedural bar requires the defendant to establish the improper comments constitute fundamental error. Id. Because the defense failed to object or otherwise properly preserve all of the allegedly improper comments, Sampson must establish that these comments cumulatively constitute fundamental error. Brooks v. State, 762 So.2d 879, 898-99 (Fla. 2000) (holding that, in analyzing whether improper closing arguments require reversal, the court “considers the cumulative effect of objected-to and unob-jected-to comments when reviewing whether a defendant received a fair trial”). See also Braddy v. State, 111 So.3d 810 (Fla. 2012); Servis v. State, 855 So.2d 1190 (Fla. 5th DCA 2003). Such a review also includes consideration of whether the improper comment was repeated, and whether the jury was provided with an accurate statement of the applicable law after the improper comment was made. Kaczmar v. State, No. SC13-2247 at *7, — So.3d -, 2017 WL 410214 (Fla. Jan. 31, 2017); Poole v. State, 151 So.3d 402, 415 (Fla. 2014).

As the Florida Supreme Court has acknowledged: “To justify not imposing the contemporaneous objection rule, ‘the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” State v. Delva, 575 So.2d 643, 644-45 (Fla. 1991) (quoting Brown v. State, 124 So.2d 481, 484 (Fla. 1960)).

Further, when the error is caused by improper closing argument, we must resist the “temptation for both trial courts and appellate courts to use the remedy of a new trial as a tool to punish misconduct of an attorney.” Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010, 1029 (Fla. 2000) (quoting Hagan v. Sun Bank of Mid-Florida, 666 So.2d 580, 584 (Fla. 2d DCA 1996)). Instead, we must recognize that, absent an allegation of bad faith or intentional misconduct, our analysis must focus primarily on the prejudicial impact of the “message” rather than on the unprofessionalism of the “messenger.”

Upon our review of the entire closing argument, including the nature and number of the improper comments, the context in which they were made, and statements of law accompanying the improper arguments, we cannot say that these improper comments reached down into the validity of the trial such that a conviction could not have been obtained in the absence of these errors. See Bell v. State, 108 So.3d 639 (Fla. 2013); Doorbal v. State, 837 So.2d 940, 957 (Fla. 2003); Bertolotti v. State, 476 So.2d 130, 133 (Fla. 1985); Augustine v. State, 143 So.3d 940 (Fla. 4th DCA 2014).

Nevertheless, we set forth in greater detail two arguments complained of, in the hope that the discussion which follows can provide future guidance to attorneys.

GOLDEN RULE ARGUMENT

[PROSECUTOR]: Take this journey with me please. Bear with me. Think about what Casey’s going through fighting for his life. Fighting for his life. [Pauses for sixty seconds.] There’s one. One minute. That was one minute.
Everybody on this jury has been swimming before, I presume, or has been underwater before where you get to that point where you’re losing breath and you need to get to the surface. And you get that heavy feeling in your chest. And it feels so good when you get up to the surface and finally get a breath of fresh air. Well, that’s what Casey was doing that day. He was looking for that breath of fresh air and couldn’t breathe. And Dr. Lew told you five minutes when the brain is dying— she described his death.
And I hate next of Mn has to hear it. She said it would have been a painful death. She said it would have been very, very painful. The process she said that the body goes through when it struggles for air is painful. It’s miserable. It’s torturous. Casey Sigler went through that process before he died.

(Emphasis added.)

The State initially contends the prosecutor was permitted to make these arguments because there was a factual basis in the testimony for it: the medical examiner testified to the fact that it took several minutes of extreme pressure for the victim to die from strangulation at the hands of the defendant and that the victim’s neck was broken and he suffered trauma that caused bruising and swelling.

But the mere fact that there is a factual basis in the testimony does not mean an attorney is free to argue that evidence in an improper manner or for an improper purpose. In light of the evidence, it certainly was proper to argue that the death by strangulation took several minutes, during which the victim was likely fighting and struggling for breath. Such an argument could be made for the purpose of showing that Sampson acted with ill will, hatred, spite or evil intent—thus supporting a verdict of guilty for second-degree murder rather than manslaughter. In point of fact, the prosecutor began this portion of his closing with what appears to be a proper argument:

Take this journey with me please. Bear with me. Think about what Casey’s going through fighting for his life. Fighting for his life. [Apparent pause in argument for sixty seconds.] There’s one. One minute. That was one minute.

Had he then argued to the jury that during this time, Sampson continued to strangle Casey as he struggled and fought for his life (thereby evidencing Sampson’s ill will, hatred, spite or evil intent in support of second-degree murder) we surely could find no fault in such an argument, as the prosecutor would be arguing the evidence, its reasonable inferences, and the law, in a proper manner and for a proper purpose.

But this is not what the prosecutor did. Instead, he asked the jurors to place themselves in the shoes of the victim and to feel the very pain, suffering and desperation the victim felt just before his death:

Everybody on this jury has been swimming before, I presume, or has been underwater before where you get to that point where you’re losing breath and you need to get to the surface. And you get that heavy feeling in your chest. And it feels so good when you get up to the surface and finally get a breath of fresh air, .
Well, that’s what Casey was doing that day. He was looking for that breath of fresh air and couldn’t breathe. And Dr. Lew told you five minutes when the brain is dying—she described his death.
And I hate next of kin has to hear it. She said it would have been a painful death. She said it would have been very, very painful. The process she said that the body goes through when it struggles for air is painful. It’s miserable. It’s torturous. Casey Sigler went through that process before he died.

The State alternatively contends that this was proper closing argument, citing Mosley v. State, 46 So.3d 510 (Fla. 2009) in support of its position. In Mosley,, the prosecutor made the following argument:

From the testimony of the Medical Examiner, [Lynda Wilkes] did not go unconscious right away. Lynda Wilkes was on the ground, looking up at that man, that face, someone she trusted, knowing that she wasn’t leaving Armsdale [the killing site]. She had the opportunity to contemplate her own death and he went on as the Medical Examiner told you approximately four minutes to kill someone by strangulation, much less to render them unconscious, but to kill them a tremendous amount of time and force and constant pressure and constant intent.

Id. at 521 (emphasis added).

The Florida Supreme Court found this argument was proper, but for reasons that are - entirely inapplicable to the ihstant case. Mosley was a capital case, and the jury had already found the defendant guilty of first-degree murder. The above argument in Mosley was made during the penalty phase, and one of the aggravating factors relied upon by the State (and for the jury to consider) was that the murder was “especially heinous, atrocious or cruel.” See § 921.141(6)(h), Fla. Stat. (2004). In finding this penalty phase argument was proper, the Mosley Court observed:

[T]hose comments were directly relevant to the HAC aggravator and had a factual basis in the testimony of both Griffin [the accomplice] and the medical examiner. A prosecutor may make comments describing the murder where these comments are based on evidence introduced at trial and are relevant to the circumstances of the murder or relevant aggravators, so long as the prosecutor does not cross the line by inviting the jurors to place, themselves in the position of the victim.

Mosley, 46 So.3d at 521 (emphasis added).

By contrast, in the instant case there was no relevant purpose for the prosecutor asking the jury to consider the victim’s pain, suffering and sense of desperation before he died. Mosley thus has no application here. Moreover, by asking jurors to feel the pain and suffering felt by the victim prior to his death, the prosecutor did precisely what Mosley condemned— “cross[ed] the line by inviting the jurors to place themselves in the position of the victim.” Id The prosecutor’s comments in this case were classic (and classically improper) Golden Rule argument. See, e.g., Doorbal, 837 So.2d at 957 (Golden Rule violation where prosecutor argued: “Remember [the police detective who] came in and showed you how that Omega taser works. Many of you jumped. Can you imagine how that would feel on your skin right up close? How it felt on [the victim’s] sweating legs and ankles. But, again and again until he signed over everything. Signed over his entire life.”); Davis v. State, 604 So.2d 794, 797 (Fla. 1992) (Golden Rule violation where prosecutor argued: “[I]t might not be a bad idea to look at [the knife] and think about what it would feel like if it went two inches into your neck.”); Garron v. State, 528 So.2d 353, 358-59 (Fla. 1988) (Golden Rule violation where prosecutor argued: “Imagine the anguish and pain that [the victim] felt as she was shot in the chest and [dragged] herself from the bathroom into the bedroom where she expired.”); Bertolotti, 476 So.2d at 133 (Fla. 1985) (Golden Rule violation where prosecutor “invit[ed] the jury to imagine the victim’s final pain, terror and defenselessness.”)

MISCARRIAGE OF JUSTICE ARGUMENT

The prosecutor also argued that it would be a “miscarriage of justice” if the jury returned a verdict of manslaughter, as opposed to second-degree murder. On appeal, the State contends that this “miscarriage of justice” argument is proper because this phrase is included in the standard jury instructions read by the trial court to the jury. Indeed, Florida Standard Jury Instruction (Crim.) 3.10 (Rules for Deliberation) provides in relevant part:

You must follow the law as it is set out in these instructions. If you fail to follow the law, your verdict will be a miscarriage of justice. There is no reason for failing to follow the law in this case. All of us are depending upon you to make a wise and legal decision in this matter.

(Emphasis added.)

However, it is overly simplistic to conclude that, just because the trial court instructs the jury in this regard, any “miscarriage of justice” argument is fair game. In Braddy, 111 So.3d at 841, the Florida Supreme Court addressed a “miscarriage of justice” argument similar in some respects to that made by the prosecutor in the instant case. Braddy was charged with first-degree murder and the defense argued to the jury that the evidence supported only a lesser-included offense. In response, the prosecutor argued to the jury:

[STATE]: The defendant intended to kill her. He intended to kidnap her. He intended to kill her. To find him guilty of anything less than intentional premeditated first-degree murder, either by premeditation or felony would be to minimize what occurred.
[DEFENSE]: Objection, Your Honor.
[THE COURT]: All right. The objection is sustained. Rephrase it please.
[STATE]: To find him guilty of anything less would not be supported by the evidence, and it would be a miscarriage of justice.

Id. (Emphasis added.)

As in the instant case, the defense in Braddy failed to object to the “miscarriage of justice” reference. Although the Florida Supreme Court held that this single remark, in context, was not error (or if error, was harmless), the Court addressed the larger potential prejudice when such arguments are made:

It is—at least in some contexts—reversible error for a prosecutor to “exhort the jury to ‘do its job,’ ” because “that kind of pressure ... has no place in the administration of criminal justice.” United States v. Young, 470 U.S. 1, 18, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). Similar concerns regarding improper pressure on the jury are raised here by the prosecutor’s suggestion that finding Braddy guilty of a lesser offense rather than first-degree murder “would be a miscarriage of justice.” See United States v. Ingraldi, 793 F.2d 408, 415-16 (1st Cir. 1986) (accepting government’s concession that prosecutor’s “statement that it would be ‘a miscarriage of justice to acquit’ ” was improper).

Id.

As can be seen from the discussion in Braddy, the propriety of such an argument must be analyzed in its individual context. In the instant case, the prosecutor made at least one appropriate “miscarriage of justice” argument, given the context in which it was made. However, the prosecutor’s argument to the jury that “[i]t would be a miscarriage of justice to this court, to yourself, to the next of kin that is sitting here, and to everybody who believes in this system” exhorts the jury to do its job and is improper. It is also improper to invoke a miscarriage of justice argument as a strawman to evoke sympathy for the victim (“For you to mitigate that process with the feeling that “Well, you know, he feels bad, so I’m going to cut him a break,’ again that would be a miscarriage of justice. If you are going to feel bad for anybody, feel bad for Casey. He died a horrible death. Horrible death.”) These arguments improperly cross the line by exhorting the jury to “do justice” for the victim and his next of kin, and by appealing to the jury’s sympathy, emotions, and sense of community conscience or civic responsibility. See Cardona v. State, 185 So.3d 514 (Fla. 2016); Braddy, 111 So.3d at 843; Ruiz v. State, 743 So.2d 1 (Fla. 1999); Birren v. State, 750 So.2d 168 (Fla. 3d DCA 2000); Del Rio v. State, 732 So.2d 1100 (Fla. 3d DCA 1999); Brinson v. State, 153 So.3d 972 (Fla. 5th DCA 2015); Smith v. State, 818 So.2d 707 (Fla. 5th DCA 2002).

The concerns we express here are not new. Sadly, our appellate courts have for decades expressed consternation over the recurring misconduct of attorneys during closing arguments. See, e.g., Bertolotti, 476 So.2d at 133 (observing: “[W]e are deeply disturbed as a Court by the continuing violations of prosecutorial duty, propriety and restraint. ... This Court considers this sort of prosecutorial misconduct, in the face of repeated admonitions against such overreaching, to be grounds for appropriate disciplinary proceedings. It ill becomes those who represent the state in the application of its lawful penalties to themselves ignore the precepts of their profession and their office”); Mora v. State, No. 3D15-1434 *1, 211 So.3d 308, 2017 WL 608287 (Fla. 3d DCA Feb. 15, 2017); Bell v. State, 723 So.2d 896 (Fla. 2d DCA1998) (observing: “We continue to be concerned when trial counsel make improper arguments to a jury. At times it seems as if certain counsel consider the harmless and fundamental error rules to be a license to violate both the substantive law and the ethical rules that prohibit improper argument”); Luce v. State, 642 So.2d 4 (Fla. 2d DCA 1994) (Blue, J., concurring and observing: “I write because I am disturbed by the increasing number of improper arguments appearing in the trial records that come before this court in both criminal and civil cases. I understand the role of the advocate. I understand that advocates worth their salt wish to win. However, the courtroom is not an arena for testing the relative strengths of gladiators; it is the place where citizens of our state expect to settle disputes in a manner more civilized than hand-to-hand combat. ... Trial attorneys must' avoid improper argument if the system is to work properly. If attorneys do not recognize improper argument, they should not be in a courtroom. If trial attorneys recognize improper argument and persist in its use, they should not be members of The Florida Bar.”)

That such misconduct persists, despite these clarion calls, deepens our disquiet. The fact that the prosecutor’s misconduct has weathered the storm of our direct review, while certainly not beside the point, is also clearly not the entire point. We remind all attorneys of their solemn oath and their ethical obligation to the court, the justice system, and to the individuals and entities they represent. And in particular, we remind prosecutors of the special obligation that accompanies their position, for an assistant state attorney

is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935).

Affirmed.

      . Sampson was acquitted of the burglary charge.

      . For example, the prosecutor argued:
      [PROSECUTOR]: Through his words and actions, you can get inside his mind. And I submit to you, when you do that you realize this isn't merely a manslaughter. This is more than manslaughter. It would be a miscarriage of justice to this court, to yourself, to the next of kin that is sitting here, and to everybody who believes in this system.

      [PROSECUTOR]: It would be a miscarriage of justice to go in that jury room and say "You know what, this was a minor attack. This doesn’t raise to the level of murder. This is manslaughter.” Because this case is not manslaughter.
      [PROSECUTOR]: For you to mitigate that process with the feeling that “Well, you know, he feels bad, so I’m going to cut him a break,” again that would be a miscarriage of justice. If you are going to feel bad for anybody, feel bad for Casey. He died a horrible death. Horrible death.
      Immediately after making these comments, the prosecutor reminded the jury about a discussion that was held during jury selection:
      We talked a little bit before—we get into the law here. We talked a little bit on jury selection about sympathy versus common sense. Ladies and gentlemen, we’re all sympathetic people. Again, you can feel bad for Casey, you can feel bad for the defendant for this position he’s put himself in, you can feel bad for this courtroom, you can feel bad for the attorneys. That perfectly acceptable. And that’s good. That means you’re good people. But that can’t affect your decision.

      . The prosecutor made the following argument in the context of applying the standard jury instructions on lesser-included offenses (Fla. Std. J. Inst. (Crim.) 3.4), rules for deliberation (Fla. Std. J. Inst. (Crim.) 3.10) and the verdict form (Fla. Std. J. Inst. (Crim.) 3.12) to the evidence in the case:
      [PROSECUTOR]: [I]t is your duty when you’re deliberating to review the evidence, make a determination that the State has proved the case beyond a reasonable doubt, prove each and every element of the crimes that are charged.... [Y]ou should find the defendant guilty of the highest crimes that the State has proved.

      [PROSECUTOR]: Now the judge is going to give you a very important instruction. And it's going to say that ladies and gentlemen, as sworn jurors in this case, you have a duty—you have a duty to render a verdict of the highest most severe charges the State has proven. Okay? Which means it would be—it would be unlawful, it would be a miscarriage for you to go back there and say, “Well, I think they’ve proven murder, but let’s throw a bone. Let’s do manslaughter.” That would be a miscarriage of justice.
      This argument, and the single reference to miscarriage of justice for failing to follow the law in this context, does not appear to us to be improper, as it is an appropriate discussion of the interplay between the relevant instructions on the law, the evidence introduced at trial, and the reasonable inferences therefrom.
      Of course, assessing the propriety of these arguments is complicated by the fact that the standard instruction on "miscarriage of justice” is inextricably linked to the jury's inherent pardon power, and represents an implicit effort to discourage the exercise of that power. There is no standard instruction on the jury’s pardon power, which has been described as "the jury’s inherent power to pardon a defendant by convicting the defendant of a lesser offense.” State v. Estevez, 753 So.2d 1, 4 (Fla. 1999). Indeed a fair reading of the standard jury instructions leaves one with the impression that a jury possesses no such power. But the jury’s pardon "power” is not the equivalent of a jury’s pardon "authority” because the exercise of the pardon power is necessarily in contravention of the law upon which the jury is instructed to rely, and a violation of the oath they take as jurors. See Sanders v. State, 946 So.2d 953, 957-58 (Fla. 2006); Fla. R. Crim. P. 3.360 (requiring jurors to take an oath to “well and truly try the issues between the State of Florida and the defendant and render a true verdict according to the law and the evidence. ...”). Thus, a "miscarriage of justice” argument exposes the uneasy tension between the jury's avowed obligation to follow the law and its unspoken power to disregard it.

      . The Mora court observed: "This is not a new problem. See, e.g., Jackson v. State, 421 So.2d 15, 16 (Fla. 3d DCA 1982). Although the State Attorney’s Office prosecutes these cases, the regional office of the Attorney General of Florida is required to handle any resulting appeals. One imagines that improper argument of this kind might diminish if the prosecutor who created the issue at trial was required to research and write the appellee’s brief, and then argue the appeal here. In-service trainings between the two offices might also mitigate the problem. ... For some time, this court has been faced with a veritable torrent of cases which have similarly involved significant prosecutorial improprieties committed by assistant state attorneys in this district.”