author: BENTON, J. CLARK, J.,

text:
    Tommy Jack HARRISON, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-4366.
    District Court of Appeal of Florida, First District.
    March 25, 2010.

      Nancy A. Daniels, Public Defender, Edgar Lee Elzie, Jr., Assistant Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

On direct appeal from convictions for lewd and lascivious molestation of a victim less than twelve years of age, Tommy Jack Harrison argues that the trial court erred in excluding a defense expert and the opinion testimony he would have given. We reverse and remand for a new trial.

We will not disturb a trial court’s decision on the admissibility of expert testimony absent an abuse of discretion. See Doctors Co. v. State, Dep’t of Ins., 940 So.2d 466, 469 (Fla. 1st DCA 2006) (“In our consideration of the trial court’s ruling excluding the testimony of Appellant’s expert witness, we apply the well established standard of review that ‘acceptance or rejection of expert testimony is a matter within the sound discretion of the lower tribunal, and such decision will not be overturned on appeal absent a showing of abuse of discretion.’” (quoting Gray v. Russell Corp., 681 So.2d 310, 316 (Fla. 1st DCA 1996))). But we find an abuse of discretion here.

Our supreme court has explained that “in cases such as this, ‘some expert testimony may be helpful,”’ Tingle v. State, 536 So.2d 202, 205 (Fla.1988) (quoting United States v. Azure, 801 F.2d 336, 340 (8th Cir.1986)), and has made clear that “an expert may properly aid a jury in assessing the veracity of a victim of child sexual abuse ‘without usurping their exclusive function by generally testifying about a child’s ability to separate truth from fantasy.’ ” Id. (quoting Azure, 801 F.2d at 340). See Quintero v. State, 889 So.2d 1013, 1014 (Fla. 1st DCA 2004).

At trial, the alleged victim, then eleven years of age, testified that the appellant twice “rubbed” her “private” seven or eight years earlier, when she was three or four years old. She testified she did not remember whether he touched her outside or underneath her clothing. The prosecution’s case rested entirely on these accusations, accusations which the alleged victim had made less than a year before trial (although her mother and a social worker, echoing the same belated accusations, also recounted them for the jury).

Appellant’s trial counsel defended by questioning the reliability of an eleven-year old child’s memory of events that occurred when the child was three or four years old. The trial court excluded the defense’s only expert, however, disallowing his testimony on grounds that (1) the expert’s name was disclosed late and (2) “the Court does not find that this proffered specialized knowledge by Dr. Larson is something that is necessary for the trier of fact to understand in interpreting the evidence or determining a fact in issue.”

The trial court’s decision not to permit the expert to testify because of defense counsel’s failure to list him as a witness until 13 days prior to trial was a clear abuse of discretion: The State made no objection on this basis, and the trial court failed to conduct a hearing of the kind required by Richardson v. State, 246 So.2d 771 (Fla.1971). See Curry v. State, 1 So.3d 394, 398 (Fla. 1st DCA 2009) (“Richardson mandates that once a discovery violation is revealed, the trial court must conduct an inquiry to determine the sanctions that should be imposed on the violating party.” (quoting Snelgrove v. State, 921 So.2d 560, 567 (Fla.2005))); Grace v. State, 832 So.2d 224, 226-27 (Fla. 2d DCA 2002) (“A trial court’s ruling excluding evidence as a discovery sanction is subject to an abuse of discretion standard of review. While Florida Rule of Criminal Procedure 3.220(n)(l) authorizes a court to exclude evidence as a sanction for a violation of the discovery rules, this sanction should only be imposed when there is no other adequate remedy.” (internal citations omitted)). In the absence of a •Richardson hearing, the trial court was in no position to make — and did not make — a determination that there was no other adequate remedy for the discovery violation the trial court spontaneously ruled had taken place.

On the second ground, even though it denied defense counsel’s request to allow Dr. Larson to testify on proffer, see Fehringer v. State, 976 So.2d 1218, 1220 (Fla. 4th DCA 2008) (“A trial court commits error if it denies a request to proffer testimony which is reasonably related to the issues at trial.” (citing Wood v. State, 654 So.2d 218, 220 (Fla. 1st DCA 1995))); Ro-zier v. State, 636 So.2d 1386, 1387-88 (Fla. 4th DCA 1994), the trial court ruled that Dr. Larson’s testimony would not assist the jury in understanding the evidence or determining a fact in issue. See § 90.702, Fla. Stat. (2007) (“If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.”). The prosecution did not question Dr. Larson’s psychological expertise or object on grounds other than relevance. See generally Ramirez v. State, 651 So.2d 1164 (Fla.1995); Daniels v. State, 4 So.3d 745, 748-49 (Fla. 2d DCA 2009).

Trial counsel defended not on the theory that the child was lying — defense counsel told the jury she believed the child thought she was telling the truth — but by suggesting that memories from early childhood are unreliable and susceptible to distortion by external factors. One such external influence, the defense contended, could have been a “Law and Order” television program that portrayed a boy assaulting his sister sexually, a program the child testified that she watched the night before she made the molestation allegations to her mother. In closing argument, defense counsel argued that “personal experience ... [a]ffects a person’s memory, and certainly a child’s memory.” Defense counsel emphasized the “suggestibility” or suggestiveness of “things outside the child, like the movie she saw, like the sexually charged atmosphere in our society, like the great emphasis that our society is now putting on this whole field of child sexual abuse.”

It was in an effort to establish this defense that Mr. Harrison’s trial counsel sought to call Dr. Larson as an expert witness. The trial court reasoned that the expert testimony would not assist the jury because jurors already “understand[ ] the basic premise that children are children, that sometimes they will create things that are fantasies that may or may not be true.... ” (What the trial court meant by “fantasies that may or may not be true” is unclear.) The trial court seemed not to acknowledge that the defense sought to raise a reasonable doubt by proving that a truthful child might mis-remember seven- or eight-year old events, and that the defense had the right to try to do so.

At issue here is testimony significantly different from an “expert’s general testimony as to eyewitness fallibility.” Rodriguez v. State, 413 So.2d 1303, 1305 (Fla. 3d DCA 1982). See McMullen v. State, 714 So.2d 368, 372 (Fla.1998) (holding “the admissibility of expert testimony regarding the reliability of eyewitness testimony is left to the sound discretion of the trial judge”). Nor would Dr. Larson’s testimony have been “a conclusion on an ultimate issue of fact based solely on [the defendant’s] self-serving statements.” Mitchell v. State, 965 So.2d 246, 251 (Fla. 4th DCA 2007). An unusually lengthy interval separated the child’s allegations from the alleged acts.

The defense sought to debunk common misconceptions regarding the formation and accuracy of children’s memories. Only if the reliability of accusations leveled by an eleven-year-old child — of sexual misconduct occurring seven or eight years earlier, accusations made in the same conversation in which she reports seeing, the night before, a television program about child sexual activity — can be said to be within the ordinary understanding of jurors, could it be argued that Dr. Larson’s testimony could have served no purpose. Compare Jordan v. State, 694 So.2d 708, 717 (Fla.1997) (trial court erred by allowing a clinical gerontologist’s expert testimony regarding the fear felt by an elderly female victim in a confrontation with an armed defendant because “common experiences dictate that an elderly woman approached in public by a man with a gun will be terrified”); Lewis v. State, 572 So.2d 908, 911 (Fla.1990); Johnson v. State, 393 So.2d 1069, 1072 (Fla.1980) (“We believe it is within the common knowledge of the jury that a person being attacked and beaten undergoes stress that might cloud a subsequent identification of the assailant by the victim.” (quoting Nelson v. State, 362 So.2d 1017, 1021 (Fla. 3d DCA 1978))). But see Boyer v. State, 825 So.2d 418, 419 (Fla. 1st DCA 2002) (“However, the trial court is not compelled to exclude the expert just because the testimony may cover matters within the average juror’s comprehension. See United States v. Hall, 93 F.3d 1337, 1342 (7th Cir.1996).”).

The present case involves a child’s allegations of sexual abuse in the distant past. We also ruled that excluding expert testimony was an abuse of discretion in Boyer, where we said: “Had [the expert’s] testimony been admitted, it ‘would have let the jury know that a phenomenon known as false confessions exists, how to recognize it, and how to decide whether it fit the facts of the case being tried.’ It is for the jury to determine the weight to give to [the expert’s] testimony, and to decide whether they believed his theory or ‘the more commonplace explanation that the confession was true.’ ” 825 So.2d at 420 (citations omitted).

Our holding in Boyer is apposite here, inasmuch as “[i]t is well settled that, in child sexual abuse cases, ‘an expert may properly aid a jury in assessing the veracity of a victim of child abuse ... by discussing various patterns of consistency in the stories of child sexual abuse victims and comparing those patterns in [the victim’s] story.’ ” Quintero, 889 So.2d at 1014 (quoting Tingle, 536 So.2d at 205) (trial court did not err by allowing expert to testify that child victims do not initially fully disclose abuse in 67 percent to 70 percent of child sexual abuse cases). Although, as our supreme court has explained, in child sexual abuse cases, too, “expert testimony may not be offered to directly vouch for the credibility of a witness,” Tingle, 536 So.2d at 205, expert testimony has repeatedly been deemed admissible in child sexual abuse cases as an aid to assessing the reliability of the child victim’s account. See Toro v. State, 642 So.2d 78 (Fla. 5th DCA 1994) (collecting cases).

To make a decision regarding general acceptance of expert testimony under Frye v. United States, 293 F. 1013 (D.C.Cir.1923), we “may examine expert testimony, scientific and legal writings, and judicial opinions.” Hadden v. State, 690 So.2d 573, 579 (Fla.1997) (citing Flanagan v. State, 625 So.2d 827, 828 (Fla.1993)). In one such writing, Professor Weaver and colleagues have reported what they characterize as a common misconception that a child’s memory of events is usually as reliable as an adult’s recollection, whereas in fact children “are more susceptible to suggestion, fantasy, perceived demand characteristics, and source confusion.” Charles A. Weaver, III, Trent Terrell & Amanda Holmes, Evaluating the Reliability of Eyewitness Memory in Product Identification Cases, SM038 ALI-ABA 709 (Nov. 30-Dec. 1, 2006). Furthermore, “[r]esearch demonstrates that the accuracy of children’s memories declines more quickly over time than that of adults.” Lucy S. McGough, Good Enough for Government Work: The Constitutional Duty to Preserve Forensic Interviews of Child Victims, 65 Law & Contemp. Probs. 179, 182 (Winter 2002). According to defense counsel, Dr. Larson was prepared to testify that experts in the field have determined that thirty percent of the time reports of child sexual abuse are false. We have allowed analogous testimony in child sexual abuse cases not unlike the present case. Quintero, 889 So.2d at 1013 (upholding conviction where an expert witness testified “that child victims do not initially disclose in 67% to 70% of child sexual abuse cases”).

Although the trial judge did not have the benefit of law review articles counsel did not cite below, we note the accepted “premise that the trial court’s ruling on a Frye issue is subject to de novo review on appeal. See Brim v. State, 695 So.2d 268, 274 (Fla.1997).” Murray v. State, 838 So.2d 1073, 1077-78 (Fla.2002). Where the issue is properly preserved, “we must address the matter of general acceptance as of the time of appeal, rather than the time of trial.” Bevil v. State, 875 So.2d 1265, 1268 (Fla. 1st DCA 2004) (citing Ramirez v. State, 810 So.2d 836, 844-45 (Fla.2001)). The expert testimony counsel described below in her spoken proffer would have been highly relevant.

“Any doubt as to admissibility under Frye should be resolved in a manner that minimizes the chance of a wrongful conviction.” Ramirez v. State, 810 So.2d 836, 853 (Fla.2001). Where so many years elapse between an alleged touching and allegations that the touching occurred, there is clearly an “unusual circumstance[ ]” within the meaning of cases like Florida Power Corp. v. Barron, 481 So.2d 1309, 1310 (Fla. 2d DCA 1986). The trial court abused its discretion when it precluded Dr. Larson’s testimony about the formation of children’s memories.

Excluding Dr. Larson left Mr. Harrison’s lawyer with no witness to present the theory that external factors accounted for the child’s report of events alleged to have occurred seven or eight years earlier when she was three or four years old. The defense did not, indeed, call any witnesses. In the present case, and despite the lack of testimony on proffer, it is apparent that Dr. Larson’s “testimony ‘went to the heart’ of Appellant’s defense, [and that] its exclusion cannot be considered harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).” Boyer, 825 So.2d at 420.

Reversed and remanded.

KAHN, J., concurs; CLARK, J., dissents with opinion.

CLARK, J.,

dissenting.

I respectfully dissent. This case presents a simple question of whether the trial court abused its discretion in excluding the testimony of an expert witness.

In my opinion, reasonable people could differ as to the probative value and the trial court’s ruling on the admissibility of the expert’s opinion. Under Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980), abuse of discretion is defined as judicial action which is “arbitrary, fanciful or unreasonable, or where no reasonable men would take the view adopted by the trial court.” If reasonable people could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there should be no finding of an abuse of discretion. Cana-karis.

Absent an abuse of discretion, this court should not overturn the trial court’s ruling. It is not the appellate court’s duty to reweigh the trial judge’s decision to exclude the expert testimony or to opine on matters not contained in the record. The majority opinion does both.

I would affirm.


source: Caselaw Access Project

author: COHEN, J. LAWSON, J.,

license: Public Domain

text:
    Bernard DOUGHERTY, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3188.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2010.
    Rehearing Denied May 3, 2010.

      Bernard Dougherty, Sneads, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

Bernard Dougherty appeals the summary denial of his rule 3.800(a) motion to correct illegal sentence. Dougherty raises three claims, only one of which merits discussion.

Dougherty was charged with three offenses: resisting an officer with violence in violation of section 843.01, Florida Statutes (1999); acquiring a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge in violation of section 893.13(7)(a)(9), Florida Statutes (1999); and criminal use of personal identification information in violation of section 817.568(2), Florida Statutes (1999). At trial, the criminal use of personal identification information charge was nolle prossed. Dougherty was convicted of the remaining two charges and sentenced on both counts as a habitual felony offender. The issue for our determination is whether acquiring a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge is a qualifying offense under the habitual felony offender statute. We conclude it is not, and reverse for re-sentencing on that count.

Section 775.084, Florida Statutes (1999), sets forth the criteria for habitual felony offender sentencing. Relevant to this case, a defendant is not eligible for habitual felony offender sentencing if the “felony for which the defendant is to be sentenced, and one of the two prior felony convictions,” is a violation of section 893.13, which relates to the purchase or possession of a controlled substance. § 775.084(l)(a)3. (Emphasis supplied.) The trial court’s interpretation of the statute focused upon the Legislature’s use of the conjunctive “and” in section 775.084(l)(a)3. In denying relief, the trial court reasoned that habitual felony offender sentencing was precluded only when both portions of the statute were present. Thus, the trial court interpreted the statute to provide that even if the offense for which the defendant was to be sentenced related to the purchase or possession of a controlled substance, as long as one of the prior convictions was not a violation of section 893.13, the defendant was subject to habitual felony offender sanctions. That interpretation is inconsistent with controlling precedent. See Daniels v. State, 679 So.2d 354 (Fla. 5th DCA 1996); Pittman v. State, 733 So.2d 594 (Fla. 3d DCA 1999); Ellis v. State, 703 So.2d 1186 (Fla. 3d DCA 1997).

The statute reflects the legislative intent to exempt purchase or possession of controlled substances from habitual felony offender enhanced sentencing. Although acquiring a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge requires a fraudulent method in obtaining the controlled substance, it clearly relates to possession of a controlled substance and is included within section 893.13. Its use as the primary offense or as more than one of the predicate prior offenses for habitual felony offender sentencing is improper. See Hughes v. State, 850 So.2d 664 (Fla. 1st DCA 2003). The trial court erred in sentencing Dougherty as a habitual offender on this count. Dougherty’s remaining arguments are without merit.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

PALMER, J., concurs.

LAWSON, J., concurs and concurs specially, with opinion.

LAWSON, J.,

concurring specially.

If we were not bound by this court’s prior panel decision in Daniels v. State, 679 So.2d 354 (Fla. 5th DCA 1996), I would affirm. Section 775.084(l)(a)3., Florida Statutes, is unambiguous. By its clear terms, it precludes habitual felony offender sentencing only where the “felony for which the defendant is to be sentenced, and one of the two prior felony convictions is a violation of section 893.13” which relates to the purchase or possession of a controlled substance. In this case, the prior felonies used to enhance Dougherty’s conviction were for robbery and carrying a firearm without a license. Because neither of the prior felony convictions related to the purchase and possession of a controlled substance, section 775.084(l)(a)3., by its clear and unambiguous terms, does not preclude Dougherty’s habitual felony offender sentence on the possession-related charge for which he was sentenced in this case. See Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (“[W]hen the language of the statute is clear and unambiguous ... the statute must be given its plain and obvious meaning.”).


author: WARNER, J.

text:
    VIGILANT INSURANCE COMPANY, Appellant, v. CONTINENTAL CASUALTY COMPANY, Appellee.
    Nos. 4D08-4037, 4D09-2301.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2010.
    Rehearing Denied May 25, 2010.

      Mark Hicks, Irene Porter and Michael S. Hirschkowitz of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, for appellant.
    Elliot H. Scherker, David L. Ross, Mark A. Salky, Julissa Rodriguez, and Elaine D. Walter of Greenberg Traurig, P.A., Miami, for appellee.
   WARNER, J.

Appellant, Vigilant Insurance Company, an excess insurer, appeals an order dismissing its complaint for bad faith against Continental Insurance Company, the primary insurer. The trial court determined that Vigilant, which paid a settlement for the insured, could not recover as a matter of law on a bad faith claim against Continental, the primary insurer, because the injured party had released the insured, and Vigilant did not receive an assignment from the insured of any bad faith claim. We hold that neither the release of the insured, nor the lack of assignment of rights from the insured, bars the excess insurer’s bad faith claim in this case. Accordingly, we reverse.

Joe Hutchinson was injured while using a wood chipper which was manufactured by Garden Way. At that time, Garden Way had primary liability insurance with Continental, in the amount of $1 million subject to a $500,000 self-insured retention (“SIR”). Garden Way also had excess liability coverage under a policy with Vigilant in the amount of $25 million. Hutchinson sued Garden Way in 1998 for products liability and negligence. Vigilant alleged that Continental advised Vigilant that Continental’s limit was $1 million and that there was self-insured retention of $500,000. Continental informed Vigilant that the claim was within its limit of liability and advised Vigilant that Vigilant could close its file.

Without going through all of the demands, rejections, and settlement negotiations, it is sufficient for the purposes of this opinion to note that Hutchinson made demands for settlement within the SIR and primary insurance policy which Continental rejected without providing any notification to Vigilant. By the time Continental again contacted Vigilant after three years of litigation, Hutchinson was demanding amounts in excess of the primary policy and remaining SIR, requiring contribution from Vigilant. After several letters in which Continental did not inform Vigilant of its exact exposure, Continental finally wrote to Vigilant and for the first time took the position that the $1 million aggregate carried under the policy had been eroded to the extent of $530,000 which included the self-insured retention. This meant that Continental’s policy plus the SIR would not cover the whole cost of settlement. At that point Continental suggested that Vigilant take over the defense or settlement. Continental offered Vigilant $500,000 to enable Vigilant to settle the matter, conditioned upon Vigilant releasing Continental from all claims.

Hutchinson’s claim was settled for $1.7 million with Continental paying $469,494 and Vigilant paying $1,230,506. Garden Way did not pay any of the SIR. Hutchinson executed a release and settlement which provided for the release and discharge of Garden Way, Continental and Vigilant. Vigilant did not obtain an assignment of any bad faith claim Garden Way may have had against Continental before the release was executed.

Vigilant sued Continental for bad faith and promissory estoppel because Vigilant was required to pay more than $1.2 million in excess coverage when it contended that Hutchinson’s claim should have been paid at a time when it could have been settled within Continental’s policy limit. Vigilant contends that Continental led Vigilant to believe that Continental’s $1 million policy limit was in addition to the self-insured retention and was sufficient to cover Hutchinson’s claim.

Continental moved to dismiss the promissory estoppel claim, asserting that Vigilant had an adequate remedy in the form of a bad faith claim. Continental also contended that there was no promissory es-toppel as.a matter of law. The trial court dismissed the promissory estoppel count without prejudice, giving Vigilant fifteen days to amend. Vigilant did not amend.

Continental also moved for summary judgment on the bad faith claim on two bases. First, Continental maintained that because Hutchinson released Garden Way as to all claims in the underlying litigation without any assignment of a bad faith claim to Vigilant, Vigilant could not maintain a claim for bad faith against Continental. Second, Continental argued that because an excess judgment was never entered in the underlying litigation, Vigilant could not state a claim against Continental.

The trial court orally granted summary judgment for Continental because: 1) Garden Way was released without paying any of the settlement out of its own pocket; and 2) there could be no bad faith claim where the underlying claim ended in settlement. The trial court relied on Fidelity and Casualty Co. of New York v. Cope, 462 So.2d 459 (Fla.1985), and Auto-Owners Insurance Co. v. American Yachts, Ltd., 492 F.Supp.2d 1879 (S.D.Fla.2007). We conclude that Cope does not apply to these facts, and American Yachts, a federal case, is not controlling and was wrongly decided.

The appellate court reviews orders granting summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000).

In RLI Insurance Co. v. Scottsdale Insurance Co., 691 So.2d 1095 (Fla. 4th DCA 1997), we determined both that an excess insurer could bring a bad faith claim against the primary insurer and that an excess judgment was not a prerequisite to the claim. Instead, an action could be based upon a settlement executed by the excess insurer. Specifically, we explained:

It is well settled that an excess insurer is entitled to maintain a common law bad faith action against a primary insurer. Ranger Ins. Co. v. Travelers Indem. Co., 389 So.2d 272 (Fla. 1st DCA 1980); General Acc. Fire & Life Assur. Corp. v. American Cas. Co. of Reading, Pa., 890 So.2d 761 (Fla. 3d DCA 1980), rev. denied, 399 So.2d 1142 (Fla.1981); Phoenix Ins. v. Florida Farm Bureau Mut. Ins. Co., 558 So.2d 1048 (Fla. 2d DCA 1990). In each of these cases, it was held that a primary insurer has the same duty to exercise good faith to an excess insurer as it does to an insured.

Id. at 1096. We also relied on North American Van Lines, Inc. v. Lexington Insurance Co., 678 So.2d 1325 (Fla. 4th DCA 1996), where we held that an insured was not required to suffer an excess judgment in order to sue for bad faith refusal to settle. The RLI court stated:

When a primary insurer is in bad faith for refusing to settle, the excess carrier is in essentially the same position as that of an insured. See Ranger; Morrison; North American. Accordingly, if the insured in North American did not have to expose itself to a judgment in order to bring a bad faith action, it follows that this excess carrier should not have to either.

Id. at 1096 (footnote omitted).

In Ranger Insurance Co. v. Travelers Indemnity Co., 389 So.2d 272 (Fla. 1st DCA 1980), on which RLI relied, the court stated that the question presented on appeal was:

(1) whether an excess carrier has the right, in the absence of a contract or assignment from its insured, to maintain a cause of action against the primary carrier for damages resulting from the primary carrier’s bad faith refusal to settle a claim against their common insured; ...

Id. at 273 (emphasis supplied). The court answered the question by determining that the excess carrier had a cause of action under a theory of equitable subrogation, and no assignment was necessary. The court explained:

We find no merit in appellee’s contention that an excess carrier’s action against the primary carrier for bad faith in settlement must be based upon a contract. It is true, as appellee contends, that bad faith actions are grounded upon contractual rights. Government Employees Insurance Co. v. Grounds, 332 So.2d 13 (Fla.1976). However, as appears from the foregoing discussion a cause of action based upon equitable subrogation is riot dependent upon the existence of a contract between the plaintiff and the defendant.

Id. at 276. In essence, the excess insurer steps into the shoes of the insured with respect to a claim for bad faith against the primary insurance company. See id. at 274-76; see also Progressive Am. Ins. Co. v. Nationwide Ins. Co., 949 So.2d 293 (Fla. 1st DCA 2007) (stating that the primary carrier owes a duty of good faith to an excess carrier based on equitable subrogation principles).

While the trial court relied on Cope, that case is distinguishable. In Cope, a party, Mr. Cope, was involved in an automobile accident caused by Mr. Brosnan, who was driving a vehicle owned by Ms. Gehan. The accident injured Mr. Cope and killed his wife. Cope recovered a judgment against Brosnan and Gehan for $100,000 on behalf of his wife’s estate. Brosnan and Gehan each had minimal insurance policies with different insurers, providing $10,000 in coverage. After recovering the judgment, both insurance companies paid their policy limits, but Cope sued Gehan’s insurance company, Hartford, for bad faith refusal to settle based upon various settlement offers made prior to trial. Hartford settled this suit with Cope for $50,000 in return for a release in favor of Hartford, Gehan and Brosnan. Fidelity, Brosnan’s insurer, was not included in the release. Cope then sued Fidelity for the remaining $30,000 due on the judgment, after deduction of the Hartford settlement and the original two policy limits. The trial court found that Fidelity had acted in bad faith during settlement negotiations and ordered it to pay $30,000 to Cope, rejecting Fidelity’s argument that the release of Brosnan barred any subsequent bad faith action against Fidelity.

The Florida Supreme Court ultimately disagreed. Because Cope had given a release which included Brosnan, thus satisfying the judgment, Cope could not recover against Brosnan’s insurance company. The court held:

We hold that if an excess judgment has been satisfied, absent an assignment of that cause of action prior to satisfaction, a third party cannot maintain action for a breach of duty between an insurer and its insured.

Cope, 462 So.2d at 461 (emphasis added). Cope had a judgment against Brosnan. Brosnan had a claim against his insurance company for bad faith, because he had suffered damage in the form of the entry of the judgment against him. However, when Cope released Brosnan from the judgment in settling with Hartford, Bros-nan could no longer maintain a claim against his own insurance company, because he was no longer damaged. As the court said:

An essential ingredient to any cause of action is damages. In this case Bros-nan originally suffered a judgment in excess of his policy. Before this action was filed, however, the judgment was satisfied. Upon its being satisfied Bros-nan no longer had a cause of action; if he did not, then Cope did not.

Cope, 462 So.2d at 461. Thus, Cope’s holding was based upon the lack of damage to the insured, once the judgment against him was satisfied.

The reasoning of Cope, however, does not apply when an insured pays the judgment, or an excess insurer pays the judgment for the insured, as a consequence of the bad faith conduct of the primary insurer. In such a case, the insured, or the excess insurer standing in the shoes of the insured, is damaged because it has paid the judgment. It has paid money that it should not have been required to pay, absent the primary insurer’s bad faith. Obviously, in settling the underlying claim or paying a judgment, the party paying to resolve the claim (whether the insured or an excess carrier) is going to secure the release of the insured and a satisfaction of any judgment. Cope does not stand for the proposition that by doing so, the insured would lose its bad faith claim against the primary insurance company. Where the insured or its excess insurance company pays or settles the claim against the insured in an amount exceeding the primary limits, it has been damaged. Obtaining a release from the third party under those circumstances does not eliminate the damage that the insured or its excess insurance carrier has suffered. Cope applies to a release of a judgment by the injured party as preventing the injured party (third party) from pursuing the insurer of the judgment debt- or. Cope does not apply to the insured suing its own insurance company for bad faith, as the insured has not released anyone from such liability. Likewise, Cope does not apply to extinguish an excess carrier’s bad faith claim against the primary carrier simply because the injured party released the insured.

In this case, only Hutchinson released the insured, Garden Way. While that release would prevent Hutchinson from suing Vigilant or Continental on bad faith refusal to settle, Garden Way did not release any potential claim it had for such an action. Only if Garden Way had released Continental as to any claims might the release have affected Vigilant’s ability to make a claim against Continental.

Because Cope does not apply to this case and both Ranger and RLI provide that Vigilant has a cause of action against Continental based upon the allegations of the complaint, we reverse the trial court’s order dismissing Vigilant’s complaint. We remand for further proceedings.

As we are reversing the final judgment in favor of Continental, we also reverse the final judgment awarding attorney’s fees to Continental.

Reversed and remanded for further proceedings.

POLEN and STEVENSON, JJ„ concur.

      . Black's Law Dictionary defines a self-insured retention as: "The amount of an otherwise-covered loss that is not covered by an insurance policy and that usually must be paid before the insurer will pay benefits...." Black's Law Dictionary 1391 (8th ed. 2004). Thus, the self-insurance amount was the amount that Garden Way had to pay before Continental was required to pay. It appears to be comparable to a deductible.

      . The crux of Vigilant's suit against Continental is that Continental represented that Hutchinson's claim would be within Continental’s limit of $1,000,000. Vigilant contends that Continental told Vigilant that the coverage limit excluded the self-insured retention amount, and later it changed position to say that that amount actually included the self-insured retention amount. Vigilant relied on these representations and by the time Continental changed its position and told Vigilant that the $1,000,000 coverage limit included the self-insurance amount, Hutchinson’s claim had ballooned from $400,000 to $1.7 million.


author: EVANDER, J.

text:
    Paul POOLE, Appellant, v. CITY OF PORT ORANGE and MHK of Volusia, etc., Appellee.
    No. 5D09-1486.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2010.
    Rehearing Denied April 23, 2010.

      Tanner Andrews, of Tanner Andrews, P.A., Deland, for Appellant.
    C. Allen Watts and Michael J. Woods, of Cobb & Cole, Deland, for Appellee MHK of Volusia County, Inc.
    Carolyn S. Ansay of Doran, Wolfe, An-say & Kundid, Daytona Beach, for Appel-lee City of Port Orange.
   EVANDER, J.

Poole appeals from an order dismissing his second amended complaint against the City of Port Orange (the “City”) and MHK of Volusia County, Inc. (“MHK”) with prejudice. We affirm the trial court’s dismissal of Counts I, III, and IV without discussion, but find that Count II adequately alleged a cause of action against the City for failure to produce public records.

The standard of review for the dismissal of a complaint with prejudice is de novo. Fox v. Prof'l Wrecker Operators of Fla., Inc., 801 So.2d 175, 178 (Fla. 5th DCA 2001). In determining whether a complaint properly states a cause of action upon which relief can be granted, a court must confine its review to the four corners of the complaint, draw all inferences in favor of the pleader, and accept as true all well-pled allegations. Id.

In Count II of his second amended complaint, Poole alleged that some time prior to March 22, 2007, the City commenced negotiations to purchase a 440-acre parcel of land from MHK. These negotiations culminated in a purchase agreement which was approved by the Port Orange City Commission in early or mid-December 2007. In conjunction with the negotiations, the City obtained two appraisals regarding the subject parcel. On November 6, 2007 and December 5, 2007, Poole requested that the City’s records’ custodian produce copies of these appraisals. Count IPs prayer for relief requested that the trial court enter an order requiring the City to produce the two appraisals for inspection and copying.

The trial court’s dismissal of Count II appears to be based on a belief that the count failed to adequately state a claim for mandamus. Although not a model of clarity, we conclude that Poole’s second amended complaint adequately alleged the elements of a mandamus claim.

Mandamus is a common law remedy used to enforce an established legal right by compelling a person in an official capacity to perform an indisputable ministerial duty required by law. Puckett v. Gentry, 577 So.2d 965, 967 (Fla. 5th DCA 1991). To state a cause of action for mandamus, a party must allege a clear legal right to performance of the act requested, an indisputable legal duty, and the lack of an adequate remedy at law. Radford v. Brock, 914 So.2d 1066, 1067 (Fla. 2d DCA 2005). Mandamus is an appropriate remedy to compel a city’s timely production of public records. Town of Manalapan v. Rechler, 674 So.2d 789, 790 (Fla. 4th DCA 1996).

Here, Poole’s second amended complaint adequately alleged each of these elements. As to the indisputable legal duty, Poole alleged that the appraisals were public records that were required, pursuant to section 119.07, Florida Statutes (2007), and section 166.045, Florida Statutes (2007), to be produced to a member of the public upon request. Town of Manalapan, 674 So.2d at 790 (production of requested public records is ministerial duty as it is a duty imposed by Chapter 119). Poole adequately alleged a clear legal right to performance given his allegations that the City refused to produce these documents, although twice requested by Poole to do so. Finally, Poole specifically alleged that he had no other legal remedy which would be effective to obtain the requested appraisals. Accordingly, we find that the trial court erred in dismissing Count II of Poole’s second amended complaint.

AFFIRMED, in part; REVERSED, in part; REMANDED.

MONACO, C.J. and GRIFFIN, J„ concur.

      . Section 119.07, Florida Statutes (2007), provides:
      Inspection and copying of records; photographing public records; fees; exemptions. (l)(a) Every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records.
      Section 119.011(11), Florida Statutes (2007), defines "Public records” as "all documents, papers ... or other material ... made or received pursuant to law or ordinance or in connection with the transaction or official business by any agency."

      . Section 166.045, Florida Statutes (2007), provides:
      Proposed purchase of real property by municipality; confidentiality of records; procedure.
      (l)(a) In any case in which a municipality, pursuant to the provisions of this section, seeks to acquire by purchase any real property for a municipal purpose, every appraisal, offer, or counterclaim must be in writing. Such appraisals, offers, and counterclaims and counteroffers are not available for public disclosure or inspection and are exempt from the provisions of section 119.07(1) until an option contract is executed or, if no option contract is executed, until 30 days before a contract or agreement for purchase is considered for approval by the governing body of the municipality ... The municipality shall maintain complete and accurate records of every such appraisal, offer, and counteroffer....

      .Even if Poole had failed to allege a clear legal duty on the part of the City to produce the appraisals, Count II would still state a cause of action albeit not for mandamus. See, e.g., Shea v. Cochran, 680 So.2d 628 (Fla. 4th DCA 1996) (where mandamus was inappropriate remedy because sheriff provided specific reason for refusing to comply with appellant's records request, appellant had adequate legal remedy for expeditiously obtaining relief pursuant to Florida’s Public Records Act).


author: VILLANTI, Judge.

text:
    Michael C. ADDISON and Richard T. Petitt, for themselves and all others similarly situated, Appellants, v. CITY OF TAMPA, Florida, Individually, and as representative of all other Florida municipalities similarly situated; Fourteen Non-Hillsborough Defendants; and The Florida League of Cities, Appellees.
    No. 2D09-1968.
    District Court of Appeal of Florida, Second District.
    April 7, 2010.
    F. Wallace Pope, Jr., of Johnson, Pope, Bokor, Ruppell & Burns, LLP, Clear-water; Stephen A. Scott of Stephen A. Scott, P.A., Gainesville; Joseph C. Moffa of Moffa & Gainor, P.A., Fort Lauderdale; Brett Alan Panter and David Sampedro of Panter, Panter & Sampedro, P.A., Miami; and Herbert T. Schwartz of Bailey & Ga-lyen, Houston, Texas, for Appellants.
    Chip Fletcher, City Attorney, and Jerry M. Gewirtz, Chief Assistant City Attorney, and Melvia B. Green, Assistant City Attorney, Tampa, for Appellee City of Tampa.
    Michael S. Popok and John J. Quick of Weiss Serota Helfman Pastoriza Cole & Boniske, P.L., Coral Gables; and Steven L. Brannock and Celene H. Humphries of Brannock and Humphries, Tampa, for Ap-pellees Fourteen Non-Hillsborough Defendants and The Florida League of Cities.
   VILLANTI, Judge.

In this class action, Michael C. Addison and Richard T. Pettit appeal a nonfinal order which applied the “home venue privilege” to exclude and dismiss from the defendant class all non-Hillsborough County class members. Because none of the established exceptions to the home venue privilege are applicable to this case, we affirm.

This is the third time some aspect of this litigation has come before this court. See City of Tampa v. Addison, 979 So.2d 246 (Fla. 2d DCA 2007), review denied, 980 So.2d 1070 (Fla.2008); Addison v. City of Tampa, 887 So.2d 334 (Fla. 2d DCA 2004) (table decision). Addison and Pettit are members of The Florida Bar who filed a lawsuit in Hillsborough County challenging the constitutionality of the City of Tampa’s occupational license tax, as applied to attorneys practicing law in Tampa. Because occupational license taxes are common throughout Florida, Addison and Pettit filed this lawsuit “for themselves and all others similarly situated,” against the City of Tampa “individually, and as representative of all other Florida municipalities similarly situated.”

The lawsuit originally listed the City of Tampa, the City of Miami, and Miami-Dade County as named defendants and also as representatives of “all similarly situated Florida municipalities and counties.” In February 2004, the trial court dismissed the City of Miami and Miami-Dade County from the case for improper venue, based on the home venue privilege. Addison and Pettit appealed the trial court’s order dismissing the City of Miami and Miami-Dade County based on home venue, and this court affirmed. See Addison, 887 So.2d at 334 (Addison I). As a result, only the City of Tampa remained as a named defendant in the case.

Thereafter, Addison and Pettit sought to certify two classes: (1) a plaintiff class which consisted of all attorneys subject to local occupational license taxes within Florida, and (2) a defendant class which consisted of all municipalities and counties within Florida which levy such occupational taxes on lawyers. On June 21, 2006, the trial court certified the two classes and appointed the City of Tampa attorneys as counsel for the defendant class. The City of Tampa appealed the class certification order, and this court affirmed the class certification. See City of Tampa, 979 So.2d at 246 (Addison II).

Certification of the defendant class had the effect of bringing into the lawsuit, as nonnamed defendant class members, at least 200 municipalities and approximately thirty-five counties in Florida which currently impose occupational license taxes on attorneys. Ironically, it also had the practical effect of bringing back into the lawsuit as nonnamed class members the City of Miami and Miami-Dade County, both of which had been dismissed from the case based on the home venue privilege. Because only four of the defendant class members are located in Hillsborough County, the City of Tampa filed a motion invoking the home venue privilege on behalf of all non-Hillsborough County defendant class members. Following a hearing, the trial court granted this motion and excluded from the defendant class all non-Hillsborough County defendant class members based on the home venue privilege. This appeal followed.

In Florida, the common law home venue privilege “governs suits against government entities[.]” Bush v. State, 945 So.2d 1207, 1212 (Fla.2006). The supreme court has clearly stated:

It has long been the established common law of Florida that venue in civil actions brought against the state or one of its agencies or subdivisions, absent waiver or exception, properly lies in the county where the state, agency, or subdivision, maintains its principal headquarters. Such a rule promotes orderly and uniform handling of state litigation and helps to minimize expenditure of public funds and manpower.

Id. (quoting Carlile v. Game & Fresh Water Fish Comm’n, 354 So.2d 362, 363-64 (Fla.1977)). Unless a recognized exception applies, the home venue privilege is absolute. Fla. Dep’t of Children & Families v. Sun-Sentinel, Inc., 865 So.2d 1278, 1288 (Fla.2004) (“[A] trial court must apply the home venue privilege unless one of the exceptions to the privilege is satisfied.”) (emphasis added); Dep’t of Agric. v. Middleton, 24 So.3d 624, 627 (Fla. 2d DCA 2009); Lake County Boys Ranch v. Kearney, 790 So.2d 602, 603 (Fla. 5th DCA 2001). “A trial court is ... bound to apply the privilege unless it determines that a recognized exception applies.” Middleton, 24 So.3d at 627 (citing Sun-Sentinel, Inc., 865 So.2d at 1288).

The supreme court has recognized only four exceptions to the home venue privilege: (1) where the legislature has waived the privilege, (2) the “sword wielder” exception, (3) a suit against the governmental defendant as a joint tortfeasor, and (4) where a party petitions a trial court for access to public records. Sun-Sentinel, Inc., 865 So.2d at 1287-89. The state agency or subdivision bears the initial burden of proving its entitlement to the home venue privilege. Middleton, 24 So.3d at 627 (citing Fish & Wildlife Conservation Comm’n v. Wilkinson, 799 So.2d 258, 260 (Fla. 2d DCA 2001)). Thereafter, the burden shifts to the plaintiffs to prove that an exception to the home venue privilege applies. Id.

Neither side in this case disputes that the counties and municipalities dismissed from the case are located outside Hillsborough County. Rather, Addison and Pettit argue that the home venue privilege does not apply because the unnamed non-Hillsborough defendant class members are not real “parties” in the case. Addison and Pettit contend that, because they are merely defendant class members, the non-Hillsborough defendant class members cannot raise the home venue privilege. While this is an interesting argument, we are bound by the current state of the law on home venue privilege: as noted, there are only four recognized exceptions to the home venue privilege, and this case does not fall under any of them. Furthermore, we have been unable to locate any Florida cases addressing the application of the home venue privilege in a defendant class action lawsuit against governmental entities. If a new exception to the home venue privilege is to be made applicable to a class action involving a defendant class composed of municipalities and counties, the supreme court or the legislature would be the appropriate bodies to create such a policy exception. However, given the time and effort spent by the parties and their novel and well-presented arguments, we nevertheless address some of the more intriguing arguments raised.

There is no case law defining who is a “party5’ in a class action for purposes of the home venue privilege. In a different context, this court has referred to unnamed class members as “quasi-parties’5 because class members do not have all the rights and responsibilities of standard parties and are, thus, not treated like full parties. Amber Glades, Inc. v. Leisure Assocs. Ltd. P’ship, 898 So.2d 620, 626 (Fla. 2d DCA 2005). For example, class members do not have the right to appeal certain orders and cannot be held liable for attorney’s fees. Id.; see also Meyer v. Scutieri, 539 So.2d 602, 603 (Fla. 3d DCA 1989) (referring to class members as “non-parties”). However, contrary to the position advocated by Addison and Pettit, this court has never said that unnamed class members have absolutely no rights in a class action.

Next, it is noteworthy that an unnamed class member can be considered a “party” for some purposes while not being a “party” for other purposes. For example, the United States Supreme Court has stated that unnamed class members are “parties to the proceedings in the sense of being bound by the settlement” and, therefore, are entitled to appeal the approval of a class settlement. Devlin v. Scardelletti, 536 U.S. 1, 10, 122 S.Ct. 2005, 153 L.Ed.2d 27 (2002) (emphasis added). Similarly, in Iorio v. Allianz Life Insurance Co. of North Amenca, No. 05-CV-633-JLS(CAB), 2009 WL 3415703, at *4 (S.D.Cal. Oct. 21, 2009), the district court rejected the defendants’ argument that the plaintiff class members played no active role in the litigation and were “legal strangers” to the litigation. The court concluded that “the non-representative class members who received notice and did not opt out are parties to the litigation.” Id. at *5 (emphasis in original); see also Tenney v. City of Miami Beach, 152 Fla. 126, 11 So.2d 188, 189 (1942) (stating that “those of the [plaintiff] class for whose benefit the suit is brought are in effect parties plaintiff’) (emphasis added); Litvak v. Scylla Props., LLC, 946 So.2d 1165, 1173 (Fla. 1st DCA 2006) (“As nonnamed members of the class, [the unnamed class defendants] are indeed already parties to this class action lawsuit.”) (emphasis added); Hoechst Celanese Corp. v. Fry, 693 So.2d 1003, 1007 (Fla. 3d DCA 1997) (noting that the “Fry Group members ... were potential party plaintiffs to the action below, if the Viera Group’s proposed class had ever been certified, but this never occurred”) (emphasis added); Costin v. Hargraves, 283 So.2d 375, 377 (Fla. 1st DCA 1973) (“[T]he various class members are made parties to the litigation involuntarily and will be bound by whatever results may follow”) (emphasis added).

On the facts of this case, it is not legally possible to conclude that the defendant class members are not, in effect, “parties” to the litigation for purposes of asserting their home venue privilege, or that the trial court abused its discretion in finding the home venue privilege applicable. The complaint in this case seeks to (1) declare these defendant class members’ ordinances unconstitutional, (2) require these defendant class members to refund all occupational taxes paid by the named plaintiffs and the nonnamed plaintiff class members within the last four years, and (3) enjoin all defendant class members from enforcing their occupational tax ordinances. Common sense and due process concerns therefore dictate that these defendant class members should have the opportunity to assert their common law home venue privilege.

Finally, we note that Addison and Pettit rely upon federal case law holding that venue in a class action is determined based only on the named parties and their claims. See, e.g., Appleton Elec. Co. v. Advance-United Expressways, 494 F.2d 126, 140 (7th Cir.1973); United States v. Trucking Employers, Inc., 72 F.R.D. 98, 99-100 (D.D.C.1976). However, none of the cases relied upon by Addison and Pet-tit involved governmental defendant class members or their home venue privilege.

We also note that federal law on the issue of venue as it relates to defendant class members is not completely settled. For example, in Sperberg v. Firestone Tire & Rubber Co., 61 F.R.D. 70, 71 (N.D.Ohio 1973), the plaintiff sued five companies individually and as class representatives in a patent infringement case. One of those five companies, Uniroyal, moved to be dismissed based on improper venue. Id. at 72. Uniroyal argued that the venue statute applicable to patent infringement cases, 28 U.S.C. § 1400(b), provided that venue was only proper (a) where the defendant resided or (b) where the defendant had “a regular and established place of business” and where it had committed the acts of infringement. Id. Uniroyal sought to be dismissed on venue grounds, arguing that neither statutory basis for venue applied to it. Id. As in this case, the plaintiff in Sperberg responded that class actions were treated differently for venue purposes. Id. The plaintiff also argued that even if Uniroyal were to be dismissed as a named class representative, it would still be an unnamed class member because Federal Rule of Civil Procedure 23 — the class action rule — trumped or enlarged the patent venue statute. Id. at 73. The district court disagreed: “If this Court holds that a nonrepresentative member of the class can be sued in the Northern District of Ohio, despite a lack of venue, this Court would be engaging in legislative enlargement of the patent venue statute[.]” Id. Therefore, if the plaintiff could not meet the requirements of the specific patent venue statute, Uniroyal was entitled to be dismissed from the case as an individual defendant, as a representative member of the class, and as a nonrepresentative member of the class. Id. at 74. Unlike Sper-berg, this case does not involve a particular venue statute. Nevertheless, the logic of Sperberg seems applicable to the home venue privilege, a privilege deeply rooted in common law.

Based on the foregoing, we affirm the trial court’s order dismissing the non-Hills-borough defendant class members.

WHATLEY and SILBERMAN, JJ., Concur.

      . The only four class members headquartered in Hillsborough County are the City of Tampa, the City of Temple Terrace, Plant City, and Hillsborough County.

      . We make three additional observations. Addison and Pettit stated at oral argument that, even if the non-Hillsborough defendant class members were to intervene in the case, they would be unable to assert the home venue privilege because an intervenor takes the case as it finds it. Therefore, their position is that by not individually naming the non-Hillsborough defendant class members and by not serving them with process, Addison and Pettit completely deprive those class members of the ability to assert the home venue privilege.
      Addison and Pettit have also taken the position that the defendant class members do not have the ability to "opt-out” of the defendant class. That argument, if ultimately correct, would distinguish this case from other cases where courts have rejected defendant class members' venue arguments because the defendant class members had the ability to “opt out" of the class. See Appleton Elec. Co. v. Advance-United Expressways, 494 F.2d 126, 140 & n. 28 (7th Cir.1973) (noting that the ability to “opt-out” satisfied "due process [requirements] to which the class action procedure is of course subject”). In this case, no such due process protections would be available if we were to accept Addison's and Pet-tit's arguments.
      It is clear that Addison and Pettit expect any judgment in this case to be binding on all defendant class members. Class actions are not designed to bind defendant class members by a judgment while simultaneously precluding them from having their interests heard.


author: STEVENSON, J.

text:
    Tyrone Jermell DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4623.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2010.
    Rehearing Denied June 4, 2010.
    Carey Haughwout, Public Defender, and Barbara J. Wolfe, Assistant Public Defender, West Palm Beach, and Tyrone J. Davis, Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

In this Anders appeal, we review the revocation of Tyrone Davis’s probation and the resulting five-year prison sentence. The trial court revoked Davis’s probation and imposed this sentence after finding him guilty of two violations of probation. As we find that the evidence was sufficient to establish only one of the alleged violations, we reverse and remand for further proceedings.

As a registered sex offender, Tyrone Davis was required to report a change of address. In October of 2005, he failed to do so and was charged with a substantive criminal offense. Davis entered a no contest plea to the charge and was placed on probation. Davis twice violated that probation and was returned to community control and then probation. In May of 2008, a third affidavit of violation of probation was filed. This time, it was alleged that Davis violated his probation by committing an aggravated battery (count I), by failing to comply with his curfew as evidenced by his GPS monitor (count II), and by tampering with a witness to the aggravated battery (count III). The State declined to proceed on the tampering with a witness charge. Following a VOP hearing, the trial court found Davis guilty of the remaining offenses, revoked his probation, and sentenced him to five years incarceration.

Having reviewed the record, we find no abuse of discretion in the trial court’s finding that Davis willfully and substantially violated his probation by committing an aggravated battery. See State v. Carter, 835 So.2d 259, 262 (Fla.2002) (holding that trial court’s decision to revoke probation is reviewed for an abuse of discretion). The same cannot be said of the alleged curfew violation.

Upon Davis’s first violation of probation, he was sentenced to six months of community control to be followed by the probationary sentence previously imposed. As a special condition, the trial court imposed a 10 p.m. to 6 a.m. curfew; the order does not specify, however, whether the curfew condition was limited to the six months of community control or whether it continued into the probationary sentence that followed. Subsequent orders imposing, removing, and re-imposing a GPS monitoring condition, pursuant to the Jessica Lunsford Act, make no reference to the curfew. Davis acknowledged being instructed on the curfew condition, but testified that he understood the curfew applied only during the six months of community control, which had expired by the time of the alleged curfew violation. According to Davis, he was actually told by Probation Officer Andre Thornton that the curfew condition had been removed. The State presented no evidence to contradict this version of events. The evidence was thus insufficient to establish a willful violation of the curfew condition. See Ubiles v. State, 23 So.3d 1288, 1290-91 (Fla. 4th DCA 2010) (“ ‘To revoke probation, the conscience of the court must be satisfied that the State proved by a greater weight of the evidence that, under the totality of the circumstances, the probationer deliberately, willfully, and substantially violated a condition of his or her probation.’ ” (quoting Shepard v. State, 939 So.2d 311, 313 (Fla. 4th DCA 2006))).

Based upon the record before this court, it is not clear whether the trial court would have revoked Davis’s probation and imposed the five-year, statutory maximum penalty based solely upon the remaining violation. We thus reverse the order appealed and remand this case so that the trial court may reconsider the matter. See, e.g., Ubiles, 23 So.3d at 1292; Glover v. State, 17 So.3d 886, 889 (Fla. 4th DCA 2009); Foggy v. State, 837 So.2d 570, 571 (Fla. 4th DCA 2003). We remind the trial court that a written order of revocation, specifying the conditions violated, is required. See, e.g., Moncrieffe v. State, 17 So.3d 850, 851 (Fla. 4th DCA 2009).

Reversed and Remanded.

WARNER and POLEN, JJ., concur.

      . In his pro se brief, Davis seeks to avoid a revocation of probation based upon his curfew violation by arguing that the curfew condition is itself illegal. The legality of the curfew condition is not a matter that can be challenged in this direct appeal from the order revoking Davis's probation. See § 924.06(2), Fla. Stat. ("An appeal of an order revoking probation may review only proceedings after the order of probation.”); Matthews v. State, 736 So.2d 72, 74 (Fla. 4th DCA 1999) (en banc) ("LA] probationer, who has accepted the conditions of his or her probation, is not permitted to challenge one of the conditions of probation after probation has been revoked for a violation of that condition.”).


author: CASANUEVA, Chief Judge.

text:
    STATE of Florida, Appellant, v. John Clark DANIELS, Appellee.
    No. 2D08-5866.
    District Court of Appeal of Florida, Second District.
    April 9, 2010.
    Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellee.
   CASANUEVA, Chief Judge.

The State of Florida appeals a circuit court order dismissing a sworn affidavit charging violations of probation against John Clark Daniels. We reverse.

Facts

By March 2008, Mr. Daniels had completed nearly one year of a probationary term following the incarcerative portion of a split sentence imposed for a conviction of aggravated fleeing and eluding. On April 7, 2008, he was arrested for leaving the scene of an accident with property damage. He admitted this violation of probation (VOP), and on April 30, 2008, the circuit court “reinstated” his probation, modifying several conditions.

Unbeknownst to the court, the prosecutor, and his probation officer, Mr. Freeman was implicated in earlier crimes that were not identified in the recently concluded VOP proceedings. On May 1, 2008, the day following his reinstatement to probation, Pasco County sheriffs deputies arrested Mr. Daniels for burglary and grand theft that had occurred on March 9, 2008. Later in May, they arrested him again for an armed burglary that had occurred on March 16, 2008. A new affidavit of VOP was then filed and subsequently amended to allege VOPs based on the March 2008 crimes. Because the affidavit charged violations occurring before he was “reinstated” on April 30, 2008, Mr. Daniels’ counsel moved to dismiss the pending amended affidavit of VOP, arguing that because the new charges occurred during a prior term of probation, further prosecution was barred. Counsel cited to the circuit court this court’s decision in Freeman v. State, 980 So.2d 629 (Fla. 2d DCA 2008), as support for dismissing the new amended affidavit.

Analysis

Initially, we observe that section 948.06(2)(a), Florida Statutes (2007), provides three dispositional alternatives when a probationer admits the charged VOP: the court “may forthwith revoke, modify, or continue the probation.” Although the statute does not mention “reinstate” as a fourth alternative, we determine in this case that the court’s “reinstatement” of Mr. Daniels’ probation is the equivalent of modifying or continuing it.

The crux of this case is whether the outcome of the April 30, 2008, hearing was the imposition of a new term of probation or merely a continuation of the previous probation. The record conclusively shows that despite the circuit court’s loose use of the word “reinstate” to describe what it was doing to Mr. Daniels’ probation, the court had continued or modified the probation, not revoked it. The order of probation that was filed based on the April 30, 2008, hearing states at paragraph 24: “PREVIOUS SUPERVISION IS NOT REVOKED — ONLY MODIFIED.” Further, at an October 2008 VOP hearing, the circuit court stated, without dispute from defense counsel, that Mr. Daniels had never legally been removed from probation. At a subsequent hearing, defense counsel’s Freeman-based argument on jeopardy having attached at the April 30, 2008, hearing, convinced the court — wrongly—to grant the motion to dismiss.

We agree with the State’s argument that it would be untenable to contend that a probationer could evade detection of a serious crime committed during a probationary term — i.e., a certain VOP — then admit subsequently to a different, perhaps technical VOP, and be shielded thereafter from a VOP charge for the earlier crime, all the while on a probationary term that was never revoked. This would reward defendants who successfully conceal their wrongdoing.

Although the circuit court relied upon Freeman, 980 So.2d 629, in dismissing the new amended affidavit of VOP, we find that case legally and factually distinguishable. In Freeman, the defendant admitted the VOP and assured the court that he would not test positive for illegal drugs on the following day. The court then continued him on probation, warning him that if he were to test positive or in any other way violate a condition of probation, he would be sentenced to prison. Id. at 630. A short time later on the same day, Mr. Freeman returned to the court to say, contrary to his earlier assurances, that he would probably test positive the next day, thus anticipatorily admitting a VOP; he requested thirty days “to get clean.” Id. The court refused to grant his request, set aside his previous sentence of continued probation, adjudicated him guilty, and sentenced him to 34.5 months’ incarceration. Id. at 631.

This court reversed the revocation of Mr. Freeman’s probation and prison sentence. We held that his sentencing hearing had concluded when the circuit court continued his prior probationary sentence, and it was “[a]t that point, [that] jeopardy attached, [so Mr.] Freeman could not legally be sentenced again to harsher sentences.” Id. (citing Ashley v. State, 850 So.2d 1265, 1267 (Fla.2003)). The distinguishing feature of Freeman from Mr. Daniels’ case is that the circuit court in Freeman, upon Mr. Freeman’s anticipatory admission of VOP, revoked his probation and ordered a harsher sentence without having before it a new sworn affidavit or proof of VOP. In Mr. Daniels’ case, he never anticipatorily admitted the new VOP charges, and the State had filed a new sworn affidavit of VOP that was before the court. The court in Freeman added an uncharged VOP onto a previously filed, admitted, and disposed of VOP charge. See also Gearhart v. State, 885 So.2d 415, 416 (Fla. 5th DCA 2004) (stating that a court “may enhance or extend probation during the probationary period following a hearing and upon proof of a violation. However, in the absence of a noticed hearing and such proof, an extension of the probationary term violates the double jeopardy prohibition against multiple punishments for the same offense.”). In contrast, in Mr. Daniels’ case, an entirely new violation of probation proceeding was commenced in the proper way — with a new sworn affidavit of VOP during a probationary period that was still ongoing, a probationary term that had never been completed, revoked, or terminated in any way.

We reverse the circuit court order dismissing the sworn amended affidavit of VOP alleging the March 2008 arrests and remand with directions to reinstate that affidavit and for further VOP proceedings.

KELLY and CRENSHAW, JJ., Concur.

      . The defendant explained that he had ingested the illegal drugs about two weeks previously and thought they would be out of his system by the time of the hearing and the new drug test scheduled for the following morning. Freeman v. State, 980 So.2d 629, 630 (Fla. 2d DCA 2008).


author: PER CURIAM.

text:
    Rhonda KIRKENDALL f/k/a Rhonda Goudie, Appellant, v. Margaret E. COOK, Diane Smith and Metropolitan Casualty Insurance Company, a foreign profit corporation, Appellees.
    No. 4D08-4288.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2010.
    Rehearing Denied May 19, 2010.

      Valentin Rodriguez of Valentin Rodriguez, P.A., Palm Beach Gardens, for appellant.
    Shelley Ray Senecal of Law Office of Shelley Senecal, Fort Lauderdale, for ap-pellees Margaret E. Cook and Diane Smith.
    Neil Rose of Bernstein, Chackman, Liss & Rose, Hollywood, for appellee Metropolitan Casualty Insurance Company, a foreign profit corporation.
   PER CURIAM.

Affirmed. See Rooney v. Lawrence E. Hannon, M.D., P.A., 732 So.2d 408, 411 (Fla. 4th DCA 1999) (indicating that “it is simply unfair to allow a party to hold back an objection like a trump card, ready to be played in the event of an unfavorable verdict”); Jenkins v. State, 732 So.2d 1185 (Fla. 4th DCA 1999).

GROSS, C.J., POLEN and STEVENSON, JJ., concur.


text:
    Samuel I. KING, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1634.
    District Court of Appeal of Florida, First District.
    April 16, 2010.
    Samuel I. King, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. R.App. P. 9.141(c)(4)(B).

KAHN, DAVIS, and THOMAS, JJ., concur.


text:
    Ervin LEE, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1631.
    District Court of Appeal of Florida, First District.
    April 16, 2010.
    Ervin Lee, Jr., pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

KAHN, DAVIS, and THOMAS, JJ., concur.


author: THOMAS, J.

text:
    Alfredo G. SANCHEZ, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D06-6562.
    District Court of Appeal of Florida, First District.
    April 20, 2010.

      Nancy A. Daniels, Public Defender, Kathleen Stover and David P. Gauldin, Assistant Public Defenders, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Ian M. Cotner, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant challenges the trial court’s denial of his request to withdraw his nolo contendere plea, and the constitutionality of his sentence under Florida’s prohibition against double jeopardy. We reject Appellant’s double jeopardy claim without comment. We affirm the trial court’s denial of Appellant’s request to withdraw his plea.

Facts

Appellant was charged with one count of engaging in sexual activity with a minor, one count of lewd and lascivious battery on a victim over 12 but under 16 years of age, and one count of lewd and lascivious molestation of a victim over 12 but under 16 years of age. The State and Appellant entered into a sentence recommendation agreement, which Appellant signed, certifying that he agreed to plead nolo conten-dere and that he recognized the maximum sentence was 15 years’ imprisonment for each count. The recommendation incorporated, by reference, arrest reports generated by law enforcement as the factual basis for the agreement.

During Appellant’s plea hearing, the trial court explained in detail the consequences of pleading nolo contendere and repeatedly warned Appellant that he could be sentenced to 45 years in prison. Appellant indicated he understood the trial judge’s questions, but when the .trial court asked him to enter a plea on the record, Appellant was unsure what he wanted to do. A recess was held and Appellant consulted his attorney, after which Appellant pled nolo contendere.

Approximately one month later, but pri- or to sentencing, Appellant filed a motion to withdraw his plea. As grounds for the motion, Appellant argued he was uncertain when entering his plea, distraught, and incapable of making a rational decision. During a hearing on the motion, Appellant testified that he disagreed with the charges because “[he] didn’t do half of it.” When the trial court asked Appellant which half of the charges he disagreed with, Appellant responded only that he wanted to go to trial and wanted to withdraw his entire plea. Appellant testified he previously pled guilty to five felonies and understood what was happening when he entered those pleas, but “that was a different story” because “they only gave [him] probation.” The trial court denied Appellant’s motion, adjudicated him guilty, and sentenced him to 45 years’ imprisonment.

Analysis

We review the trial court’s denial of Appellant’s motion to withdraw his plea for an abuse of discretion. Reaves v. State, 979 So.2d 1066, 1069 (Fla. 1st DCA 2008). Appellant’s motion to withdraw plea was filed under Florida Rule of Criminal Procedure 3.170(f). When considering a motion under rule 3.170(f), the trial court is required to allow the defendant to withdraw his plea where the defendant establishes good cause for withdrawal; upon a lesser showing, the rule allows the court to use its discretion. Rappaport v. State, 24 So.3d 1211, 1213 (Fla. 4th DCA 2009). “A defendant should be permitted to withdraw a plea if [he] files a proper motion and proves that the plea was entered under mental weakness, mistake, surprise, misapprehension, fear, promise, or other circumstances affecting [his] rights.” Smith v. State, 840 So.2d 404, 406 (Fla. 4th DCA 2003) (emphasis omitted).

Appellant argues that he should have been allowed to withdraw his plea because the trial court did not inquire about the factual basis for the plea, and Appellant was unaware of the factual basis for the charges when the plea was entered. Florida Rule of Criminal Procedure 3.172(a) requires the trial court to determine that a plea is voluntarily entered and that a factual basis for the plea exists. See also Suarez v. State, 616 So.2d 1067, 1068 (Fla. 3d DCA 1993) (“The purpose of the factual basis is to avoid a defendant mistakenly pleading to the wrong offense. To preclude this possibility, the trial judge has considerable discretion to determine whether there is a factual basis for a plea.”).

“Failure to follow any of the procedures in this rule shall not render a plea void absent a showing of prejudice.” Fla. R.Crim. P. 3.172(i) (2006); see Otero v. State, 696 So.2d 442, 442 (Fla. 4th DCA 1997). Thus, a trial court’s failure to inquire about the factual basis for a plea, as required by rule 3.172(a), results in reversible error only where the defendant establishes he was prejudiced by the error. For example, in Koenig v. State, 597 So.2d 256, 258 (Fla.1992), the court held that a defendant’s attorney’s stipulation as to the factual basis for the plea was insufficient where the record contained no information establishing a factual basis for the alleged crimes.

Here, although the trial court did not inquire about the factual basis for Appellant’s plea on the record during the plea colloquy or during the hearing on Appellant’s motion to withdraw, the record contains ample evidence establishing the factual basis for his plea. See James v. State, 886 So.2d 1032, 1033-1034 (Fla. 4th DCA 2004) (holding no prejudice results where trial court failed to inquire about factual basis for defendant’s plea where the trial court could look at the probable cause affidavit and determine the factual basis). The sentence recommendation signed by Appellant expressly incorporated the arrest reports as the factual basis for the plea. The officer’s arrest reports contained a statement by one of the victims, post-Mmmda statements by Appellant wherein he admitted all charges, and summaries of numerous statements by the victims’ friends and family members. Appellant was aware of the statements contained in the arrest reports because he sought to exclude those statements through a motion in limine. By signing the sentence recommendation, Appellant certified that he reviewed the facts of his case with his attorney and that a factual basis for the plea existed. Thus, Appellant was not prejudiced by the trial judge’s failure to inquire on the record regarding the factual basis for the plea, because the trial court could look at the recommendation agreement and the arrest reports and determine a factual basis for the plea. See James, 886 So.2d at 1034.

Further, the record transcripts reveal that Appellant’s plea was knowing and voluntary. The trial court gave Appellant a detailed explanation regarding his rights and what pleading nolo contendere meant. See Fla. R.Crim. P. 3.172(c) (listing the requirements for determining whether a nolo contendere plea has been voluntarily entered). The trial court told Appellant several times that he was “taking his chances” by pleading “straight up” and he was facing a possible 45-year prison sentence. It is clear from the colloquy between Appellant and the trial judge that Appellant was more concerned with the result of his plea than the factual basis for the charges. Appellant was given ample opportunity to explain why he wished to withdraw his plea, but his only explanation was he wished to go to trial because he received a different punishment in this case than in his previous felony plea agreements.

Based on the foregoing, Appellant failed to establish good cause for withdrawing his plea. The trial court’s denial of Appellant’s request was not an abuse of discretion because the trial court’s failure to determine a factual basis for the plea was not prejudicial.

AFFIRMED.

KAHN and DAVIS, JJ., concur.


text:
    Gary MOSANSKY, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-3312.
    District Court of Appeal of Florida, First District.
    April 20, 2010.

      Nancy A. Daniels, Public Defender and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of his first-degree murder conviction and resulting life sentence. Among the issues raised on appeal, Appellant argues that the trial court fundamentally erred by failing to specifically instruct the jury that the state had the burden to prove beyond a reasonable doubt that he did not act in self-defense. We reject this argument for the reasons that follow, and we affirm Appellant’s remaining claims without discussion.

Without objection, the trial court gave the jury the following instructions pertinent to Appellant’s claim of self-defense:

An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which [Appellant] is charged if the death of [the victim] resulted from the justifiable use of deadly force. Deadly force means force likely to cause death or great bodily harm.
A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent, one, imminent death or great bodily harm to himself or another, or, two, the imminent commission of aggravated battery against himself or another.
If in your consideration of the issue of self-defense, you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty. However, if from the evidence you are convinced that the defendant was not justified in the use of deadly force, you should find him guilty if all the elements of the charge have been proved.

Further, the court gave the following instruction on the burden of proof:

The defendant has entered a plea of not guilty. This means you must presume or believe the defendant is innocent. The presumption stays with the defendant, as to each material allegation in the information, through each stage of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt. To overcome the defendant’s presumption of innocence, the State has the burden of proving the crime with which the defendant is charged was committed and the defendant is the person who committed the crime. The defendant is not required to present evidence or prove anything.

Appellant argues that the trial court’s failure to specifically instruct the jury that the state had the burden to disprove his claim of self-defense was fundamental error because “self-defense is really in the nature of an element of the offense once the defendant presents some evidence to warrant the instruction,” and under Reed v. State, 837 So.2d 366 (Fla.2002), and State v. Delva, 575 So.2d 643 (Fla.1991), the failure to instruct the jury on a disputed element of the charged offense constitutes fundamental error. There is no merit to this argument.

The fundamental error doctrine applies “only in rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.” Martinez v. State, 981 So.2d 449, 455 (Fla.2008) (quoting Smith v. State, 521 So.2d 106, 108 (Fla.1988)) (emphasis omitted). The failure to give an instruction on an affirmative defense is not per se fundamental error. See id. (“We have never held that the failure to give an instruction ... on an affirmative defense always constitutes fundamental error.”). Rather, “[w]here the challenged jury instruction involves an affirmative defense, as opposed to an element of the crime, fundamental error only occurs where a jury instruction is ‘so flawed as to deprive defendants claiming the defense ... of a fair trial.’ ” Id. (quoting Smith).

Appellant’s reliance on Reed and Delva is misplaced because self-defense is not an element of first-degree murder, the offense at issue; rather, it is an affirmative defense that has the effect of legally excusing the defendant from an act that would otherwise be a criminal offense. See id. at 452-53 (quoting Hopson v. State, 127 Fla. 243, 168 So. 810, 811 (1936)); Cancel v. State, 985 So.2d 1127, 1131 n. 3 (Fla. 5th DCA 2008) (Griffin, J., specially concurring); but cf. Zuniga v. State, 869 So.2d 1239, 1240 (Fla. 2d DCA 2004) (“The self-defense instruction can be likened to an element of the offense for its importance to the defendant.”). The defendant has the burden of presenting sufficient evidence that he acted in self-defense in order to be entitled to a jury instruction on the issue. But the presentation of such evidence does not change the elements of the offense at issue; rather, it merely requires the state to present evidence that establishes beyond a reasonable doubt that the defendant did not act in self-defense.

The cases cited by Appellant in support of his argument on this issue stand simply for the proposition that in a criminal prosecution the burden of proving guilt beyond a reasonable doubt never shifts from the state and, as a result, when self-defense is properly at issue, the state effectively has the burden to prove that defendant was not acting in self-defense during the commission of the criminal act. See, e.g., Sipple v. State, 972 So.2d 912, 915-16 (Fla. 5th DCA 2007); Andrews v. State, 577 So.2d 650, 652-53 (Fla. 1st DCA 1991). Those cases do not, however, stand for the proposition that the trial court is required to specifically instruct the jury of the state’s burden to disprove the claim of self-defense.

Not only did Appellant fail to cite any cases supporting his argument that such an instruction is required, he neglected to even acknowledge the cases in which the argument has been expressly rejected. In Bowen v. State, 655 So.2d 1208 (Fla. 4th DCA 1995), the appellant argued that the trial court erred in denying his request to instruct the jury that the state must prove beyond a reasonable doubt that the defendant did not act in self-defense. The court rejected this argument and held that the standard jury instruction given in that case — which was materially the same as the instruction read in this case — adequately informed the jury that the defendant must be acquitted if there was any reasonable doubt concerning the defendant’s use of force against the victim. Id. at 1209.

More recently, in Bridges v. State, 878 So.2d 483 (Fla. 4th DCA 2004), the court rejected the appellant’s argument that the trial court fundamentally erred by failing to instruct the jury that the state had the burden to prove beyond a reasonable doubt that the defendant did not act in self-defense. The court noted that the jury in that case — like the jury in this case — was instructed that “if it had reasonable doubt on the issue of whether the defendant was justified in using force, it should find him not guilty,” and the court explained:

Our standard jury instructions, from which the above instructions were taken, do not include an instruction that the state has the burden to prove beyond a reasonable doubt the absence of self-defense, where self-defense is raised. Nor has appellant cited any Florida case which would require the giving of such an instruction.

Id. at 484. Similarly, in Bolin v. State, 297 So.2d 317 (Fla. 3d DCA 1974), the court explained:

[W]hen the defendant raises self-defense as an issue at trial it is within the province of the trial court to determine whether or not the evidence, viewed most favorably to the defendant, is adequate to support an instruction on self-defense. Once the judge concludes that the self-defense issue is proper, he need only instruct the jury as to the elements of self-defense. He will have no occasion to speak of burden of proof other than to explain the state’s burden of proving guilt beyond a reasonable doubt.

Id. at 319 (internal quotations omitted).

The jury instructions in this case correctly instructed the jury as to the elements of self-defense. See Jones v. State, 13 So.3d 139 (Fla. 5th DCA 2009) (holding that the standard jury instruction on the justifiable use of deadly force did not shift the burden of proof to the defendant); cf. Fields v. State, 988 So.2d 1185, 1190 (Fla. 5th DCA 2008) (reversing based upon erroneous self-defense instruction that potentially left the jury with the impression that it had to find the defendant guilty if he did not prove his claim of self-defense beyond a reasonable doubt). And the instructions, taken as a whole, clearly, comprehensively, and correctly instructed the jury on the state’s burden of proof. See Roger v. State, 670 So.2d 160,162 (Fla. 5th DCA 1996) (holding that the jury was sufficiently apprised of the state’s burden of proof regarding self-defense where they were instructed that they must find the defendant not guilty if they had a reasonable doubt on the question of whether the defendant was justified in the use of deadly force); Bowen, 655 So.2d at 1209 (“Because the jury was told that appellant must be acquitted if there was any reasonable doubt concerning his justification in using force against the alleged victim, there was no reasonable possibility that the jury was misled in regard to the prosecution’s burden of proof.”); Bolin, 297 So.2d at 319 (“A conviction will not be reversed because a particular jury instruction has not been given where, on the whole, the charges as given are clear, comprehensive, and correct.”).

In sum, based upon the authorities above, the trial court did not err (and, certainly, did not fundamentally err) by failing to specifically instruct the jury that the state had the burden to disprove Appellant’s claim of self-defense. We find no merit in Appellant’s remaining claims. Accordingly, we affirm Appellant’s judgment and sentence.

AFFIRMED.

HAWKES, C.J., WETHERELL and ROWE, JJ., concur.


author: FARMER, J.

text:
    E.L.F., Appellant, v. STATE of Florida, Appellee.
    No. 4D09-703.
    District Court of Appeal of Florida, Fourth District.
    April 21, 2010.
    Rehearing Denied June 4, 2010.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   FARMER, J.

In this case a traffic altercation between two drivers led to a third party being charged with criminal battery. The issue is whether the third party, defendant, was acting as a good Samaritan defending himself.

The State’s case began with this background. Because he had cut her off in traffic, a female driver pursued the other driver — following him for nearly a half hour — ultimately blocking him at a traffic light. Leaving her vehicle, she approached the male driver’s car, swung a blow at him, and then reached within and took his key. The male driver then emerged from his car and some tussling took place between them. At that point, the defendant juvenile confronted the male driver. The male driver claimed that the juvenile attacked him and struck him 10 times, and that he attempted to hit back but was unsuccessful.

The State rested at that point and the juvenile moved for a judgment of acquittal. The motion was denied. Defense counsel then presented his case, calling three witnesses: the female driver who confronted the male driver; defendant’s mother; and then the juvenile.

The female driver testified that she was pregnant and had her 18 month-old son in the car with her. The male driver gave her permission to get in front of his car so she could make a left turn. While she was in front of his vehicle, a truck, the male driver bumped her car and then bumped her again. As a result, she decided to follow him. She testified that there was a car next to her with the juvenile’s mother driving and the juvenile as a passenger. She asked the mother to call 911 because her phone battery was dead. The mother called 911 and joined in following the male driver for 15-20 minutes. The female driver was able ultimately to pull in front of the male driver’s truck. She left her car, approached the driver’s door of the truck and reached in to grab his keys so he could not leave.

The seated male driver thereupon punched her in the forehead, left the vehicle and kicked her in the midsection. She was sure that the juvenile defendant, who was in the passenger seat of his mother’s car, saw the male driver punching and kicking her. It was only then that the juvenile left his mother’s car. The juvenile told the male driver, “You’re not supposed to hit a woman.” At that point the male driver began hitting the juvenile.

Next, the juvenile’s mother testified. She was driving her son to work. She saw a woman on her left side motioning towards her. The woman informed her that the man in front of her had just hit her car and that her child was in the backseat. The woman asked the mother to call 911 because her phone did not work. Mother called 911 and stayed on the phone with 911 the entire time while following the man and the woman. She saw the woman get out of her car and approach the man’s window. The woman reached into his window, and the man punched her in the face, from which she fell to the ground.

The male driver then leaped from his vehicle and started fighting the woman. Seeing that he was punching the woman, the juvenile left his mother’s vehicle and tried to get the male driver off of her. The male driver then swung at the juvenile and they started fighting. She testified that the male driver and the juvenile were punching each other for a couple of minutes, but the man never fell to the ground and was never kicked. For those minutes, both of them were throwing punches at each other.

Finally the juvenile testified. His mother was taking him to work. He was not driving. The female driver next to them was trying to get his mother’s attention to call 911. They followed the woman for about 20-30 minutes, while his mother was on the phone with 911. He testified the woman reached into the male driver’s car, but the male driver responded by attacking the female driver, hitting her in the face.

He feared for the woman because it was a man beating a woman. He tried to get the male driver off of her. The male driver swung at him first but missed. The man then swung at him a second time and hit him. He did not hit the male driver first. After that, they were in a full-fledged fight. The male driver tried to strike him several times and the juvenile hit him back.

The defense rested and renewed the motion for judgment of acquittal, arguing that the juvenile came to the defense of another. The trial court denied the motion. The trial court thought the issue was not the juvenile’s state of mind but what a reasonable person would have done under the same circumstances. No further evidence was presented.

During closing arguments defense counsel argued the juvenile was a Good Samaritan. He asked the court not to be swayed by the notion that the female driver was acting out of road rage. The court responded that it was not reasonable to chase someone and to get into a fight in the middle of the street. Defense agreed that the female driver was unreasonable. The judge then wondered whether it is reasonable for the juvenile to leave his vehicle in the middle of an intersection “and start throwing punches:”

Counsel: If they’re defending a woman, absolutely, Your Honor.
Court: A woman who they did not know why they’re defending her.
Counsel: They — They personally observed Mrs. Lee get hit in the face. It is certainly reasonable at that point to come to the aid of someone who is being hit. Your Honor, let me continue. If you examine statute 8.6(g), the jury instructions in this case: “If you have any reasonable doubt on whether the question of whether the defendant was justified in using the non-deadly force, you must find him not guilty,” Your Honor. If you have even the— any and all reasonable doubt that he was engaging in self-defense, you must find him not guilty. If he was engaging in the defense of others, you must find him not guilty. So I ask you that you — that if you do find him guilty, you must be finding the State’s argument so persuasive that it eliminates all reasonable doubt from your mind that my client was engaging in self-defense.
Court: Why didn’t your client just run over there and pull that woman — pull that man off of that woman?
Counsel: Your Honor, he said he pulled the man off the woman, and he swung at him. At that point, he’s definitely justified to retaliate to the man who just swung at him and a man he personally observed hit the woman. Your Honor, I ask you to refer to the testimony in this case. Your reasonable doubt is in the numbers, Your Honor. Three people came up here and testified that this woman got punched in the forehead.

The judge was concerned that it was a high-speed chase and that road rage was involved. The judge said he found juvenile’s mother to be credible but found him guilty of battery anyway. The judge explained:

“I’m going to go ahead, and I’m going to find you guilty of battery. You can take it up with the Appeals Court....
You know, quite frankly, I’ll be honest with you.... I’m going by strictly the elements. Okay. I go by — that’s how I read the jury instructions. I am quite sure that the Appeals Court could very well disagree with me. I don’t mind. I just want the restitution.
I’m not inclined to adjudicate in this thing. I think that the line is so close to self-defense and defense of knowing — I’ll state it for the Appeals Court. The line was very dose in this case, Taylor. I’m not inclined to adjudicate the child in this, not with this set of facts.
This was a child that was going to help someone. I think it was immature what happened, and I don’t think a reasonable person would have done exactly what he did, and that’s the standard I go by.”

We give de novo review to the denial of a motion for a judgment of acquittal. W.W. v. State, 993 So.2d 1182, 1184 (Fla. 4th DCA 2008). The State has the burden of proving guilt beyond a reasonable doubt, and when defendant presents a prima facie case of self-defense, it has the burden of proving defendant did not act in self-defense beyond a reasonable doubt. Fowler v. State, 921 So.2d 708, 711 (Fla. 2d DCA 2006). As the Court explained in Brown v. State, 454 So.2d 596, 598 (Fla. 5th DCA 1984), superseded by statute on other grounds as stated in Thomas v. State, 918 So.2d 327 (Fla. 1st DCA 2005):

“While the defendant may have the burden of going forward with evidence of self-defense, the burden of proving guilt beyond a reasonable doubt never shifts from the State, and this standard broadly includes the requirement that the State prove that the defendant did not act in self-defense beyond a reasonable doubt.”

In Sneed v. State, 580 So.2d 169, 170 (Fla. 4th DCA 1991), we held that the State must disprove the defense of self-defense beyond a reasonable doubt. When the State’s evidence is legally insufficient to rebut the juvenile’s testimony establishing self-defense, the court must grant a motion for judgment of acquittal. Fowler, 921 So.2d at 711-12; see also Thompson v. State, 552 So.2d 264 (Fla. 2d DCA 1989); Hernandez Ramos v. State, 496 So.2d 837 (Fla. 2d DCA 1986); Rodriguez v. State, 550 So.2d 81 (Fla. 3d DCA 1989); Brown v. State, 454 So.2d 596 (Fla. 5th DCA 1984); Diaz v. State, 387 So.2d 978 (Fla. 3d DCA 1980); Bacom v. State, 317 So.2d 148 (Fla. 1st DCA 1975).

The testimony of the female driver, the mother and the juvenile presented prima facie evidence of self-defense. Their testimony was that he did not initiate the fight with the male driver and that he acted to defend the female driver. The trial judge described the testimony of the mother specifically as being credible. Indeed the judge’s own stated view of the evidence is that it was nearly in equipoise. In this circumstance it was necessary for the State to present rebuttal evidence disproving self defense beyond a reasonable doubt. Its failure to do so required a judgment of acquittal.

Reversed for judgment of acquittal.

GROSS, C.J., and CIKLIN, J„ concur.

      . See § 985.35.(2)(a), Fla. Stat. (2009) ("In a hearing on a petition alleging that a child has committed a delinquent act or violation of law, the evidence must establish the findings beyond a reasonable doubt”).