text:
    FL-CARROLLWOOD CARE CENTER, LLC, a/k/a FL-Carrollwood Care, LLC; Senior Health Management-Gold Coast, LLC; Dan Davis; Senior Health Management, LLC; Rick L. Knight, a/k/a Richard Leon Knight; Carla H. Russo, a/k/a Carla H. Russo, a/k/a Carla Hughes Russo (as to Carrollwood Care Center), Appellants, v. The ESTATE OF Robert Dixon GORDON, Sr., by and through Patricia Ann GORDON, personal representative, Appellee.
    No. 2D09-3269.
    District Court of Appeal of Florida, Second District.
    May 21, 2010.

      Brooke Madonna and Amy L. Christian-sen of Spector Gadon & Rosen, LLP, St. Petersburg, for Appellants.
    Isaac R. Ruiz-Carus and Bennie Laz-zara, Jr., of Wilkes & McHugh, P.A., Tampa, for Appellee.
   DAVIS, Judge.

FL-Carrollwood Care Center, LLC; Senior Health Management-Gold Coast, LLC; Dan Davis; Senior Health Management, LLC; Rick L. Knight; and Carla H. Russo (collectively “Carrollwood”) challenge the trial court’s interlocutory order denying their motion to compel arbitration in the negligence action brought against them by the Estate of Robert Dixon Gordon, Sr., by and through the Estate’s personal representative, Patricia Ann Gordon. Because the trial court erred in failing to grant Carrollwood’s request for an eviden-tiary hearing on the motion, we reverse and remand for further proceedings.

The Estate’s suit against Carrollwood stems from Mr. Gordon’s stay at a Carroll-wood facility. Mr. Gordon entered the facility on October 31, 2007. On November 1, 2007, he signed the admissions agreement, which included an arbitration clause. Once the Estate filed its complaint, Carrollwood moved to dismiss and to compel arbitration pursuant to the agreement. Two days before the scheduled hearing on Carrollwood’s motion, the Estate filed a response, arguing that no valid arbitration agreement existed because, at the time he signed the agreement, Mr. Gordon lacked the necessary capacity to enter into a contract.

At the hearing on the motion, both parties presented argument and some documentary evidence. The Estate presented Carrollwood’s nursing records for Mr. Gordon for the days between his entry into the facility and his signing the admissions agreement, and each party relied on a different portion of the deposition of Car-rollwood admissions assistant Mari Fernandez. During the hearing, counsel for Carrollwood specifically stated, “[I]f Your Honor is inclined to find that they have raised a disputed issue as to [Mr. Gordon’s] mental capacity, I would ask for an evidentiary hearing later at some point where we can look at discovery parameters so that I can also get an expert to look at it.” The court, however, did not grant this request. Instead, the trial court entered a two-paragraph order denying the motion to dismiss and compel arbitration and making the factual finding “that Robert Dixon Gordon, Sr., was not capable of understanding the nature and quality of the arbitration or its significance and consequences.”

On appeal, Carrollwood argues that a substantial issue of fact existed and that as such the trial court erred in denying Car-rollwood’s request for an evidentiary hearing. We agree.

Section 682.03(1), Florida Statutes (2007), provides as follows:

A party to an agreement or provision for arbitration subject to this law claiming the neglect or refusal of another party thereto to comply therewith may make application to the court for an order directing the parties to proceed with .arbitration in accordance with the terms thereof. If the court is satisfied that no substantial issue exists as to the making of the agreement or provision, it shall grant the application. If the court shall find a substantial issue is raised as to the making of the agreement or provision, it shall summarily hear and determine the issue and, according to its determination, shall grant or deny the application.

(Emphasis added.)

In considering this statute, this court has determined that “[i]f there are disputed issues concerning the making of the agreement, the statutory requirement that the court ‘shall summarily hear and determine the issue’ contemplates an expedited evidentiary hearing.” Tandem Health Care of St. Petersburg, Inc. v. Whitney, 897 So.2d 531, 532 (Fla. 2d DCA 2005). Here, the parties clearly disputed whether Mr. Gordon had the requisite capacity to enter into the contract, and Carrollwood specifically requested that an evidentiary hearing be held on that issue. By allowing the parties to present the documentary evidence and by making the finding in its order that Mr. Gordon lacked the capacity to enter the contract, the court implicitly determined that a substantial issue concerning the making of the agreement was raised. It was therefore error for the court to rule on that issue without holding a full evidentiary hearing. See id. at 533 (“[W]here the facts relating to the elements the trial court is required to consider in determining a motion to compel arbitration are disputed, the trial court is required to hold an evidentiary hearing in order to resolve the matter.”).

Accordingly, we reverse the trial court’s order on procedural grounds and remand for an expedited evidentiary hearing on the issue of whether Mr. Gordon had the requisite capacity to enter into the arbitration agreement.

Reversed and remanded.

WHATLEY and LaROSE, JJ„ Concur.


source: Caselaw Access Project

author: DAVIS, Judge.

license: Public Domain

text:
    Carlos WATSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-763.
    District Court of Appeal of Florida, Second District.
    May 21, 2010.

      Terri L. Backhus of Backhus & Izakow-itz, P.A., Tampa, for Appellant.
   DAVIS, Judge.

Carlos Watson challenges the postcon-viction court’s Order Denying Motion to Vacate Judgment of Conviction and Sentence. Because the postconviction court failed to consider the alleged claims of error and ineffective assistance, we reverse.

After his conviction and sentence for aggravated battery, burglary, and aggravated assault, Watson filed his Motion to Vacate Judgment of Conviction and Sentence with Special Request for Leave to Amend and For Evidentiary Hearing. The trial court dismissed the initial motion as it was unsworn; however, Watson filed an amended motion correcting that deficiency.

Watson’s amended motion raised five claims. The first claim was not an actual claim of error but rather a request for additional time to file an amended motion. Claims two and three raised ineffective assistance of counsel, claim four raised a Brady violation, and claim five alleged cumulative error.

In his first claim, Watson alleged that he was being denied his rights to adequate postconviction representation by the refusal of certain state agencies to respond to his records requests. Watson explained that the two-year time period for filing a motion pursuant to rule 3.850 was about to expire but that he needed additional time to pursue those requests. He therefore timely filed the motion but sought an extension of time in which to amend the motion with the information gleaned from the responses to his records requests. He also asked that he be determined indigent so that his discovery costs would be provided.

The postconviction court granted the requested extension, allowing Watson thirty days within which to amend his motion, but the court denied Watson’s request for the indigency determination. The order did not address any of the allegations in claims two through five.

After receiving the response to his records requests, Watson advised the post-conviction court that he did not intend to file an amended or supplemental motion. Based on this information, the postconviction court summarily denied the entire motion without any discussion or reference to any portions of the record. The court’s order merely stated: “Defendant chose not [to] amend his motion. It is therefore ORDERED AND ADJUDGED that the Defendant’s motion is DENIED.” This was error.

The postconviction court may only summarily dispose of a claim in a rule 3.850 motion if it has determined either that the claim is facially insufficient or that it is refuted by the record as supported by record attachments. See Griggs v. State, 995 So.2d 994, 995 (Fla. 1st DCA 2008) (“We review the summary denial of claims for postconviction relief to determine whether the claims are legally sufficient and whether they are conclusively refuted by the record.”). Here, however, the court never addressed claims two through five and instead denied the entire motion because Watson did not file an amended motion.

Accordingly, we reverse the postconviction court’s order denying Watson’s rule 3.850 motion and remand the case for consideration of each previously unaddressed claim.

Reversed and remanded.

WHATLEY and LaROSE, JJ„ Concur.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . We note that to deny a motion suggests that the postconviction court has considered the claims on their merits. See Livingston v. State, 944 So.2d 1254 (Fla. 2d DCA 2006). There is no indication, however, that this postconviction court considered these claims on their merits. There is also nothing in the record to indicate that the postconviction court considered the facial sufficiency of these claims. If the postconviction court determines on remand that Watson’s claims are facially insufficient, the proper disposition is to dismiss the claims.

      . Had the postconviction court's prior order dismissed claims two through five as facially insufficient, the failure to file an amendment would have justified the summary denial of the claims. See Bloye v. State, 28 So.3d 137 (Fla. 2d DCA 2010).


author: MORRIS, Judge.

text:
    Joseph SULLIVAN, as Personal Representative of the Estate of Sammy Sullivan, Appellant, v. Mark David KANAREK, M.D., and Nadal Pediatrics, P.A., Appellees.
    No. 2D08-6242.
    District Court of Appeal of Florida, Second District.
    May 21, 2010.

      George A. Vaka of Vaka Law Group, P.L., Tampa, and C. Steven Yerrid and Tammy J. Judge of The Yerrid Law Firm, Tampa, for Appellant.
    Mark Hicks and Dinah Stein of Hicks, Porter, Ebenfeld & Stein, P.A., Miami; and Ronald Josepher and Edwin P. Gale of Josepher & Batteese, P.A., Tampa, for Ap-pellees.
   MORRIS, Judge.

Joseph Sullivan, as personal representative of the estate of Sammy Sullivan (the Estate), appeals a final judgment entered in favor of Mark David Kanarek, M.D., and Nadal Pediatrics, P.A., the defendants in a medical malpractice action. The Estate specifically challenges a successor judge’s denial of its motion for new trial. The issue in this appeal is whether the successor judge was in a position to fairly consider the Estate’s motion for new trial based on the totality of both record and alleged nonrecord improprieties of defense counsel. The improprieties were so pervasive in the opinion of the presiding trial judge that she verbalized her concerns on the record, resulting in defense counsel’s successful recusal of her before she could rule on the motion for new trial. We conclude that under the extraordinary circumstances of this case, the successor judge should have granted the motion for new trial.

The facts of this case involve the tragic circumstances surrounding the death of a twenty-three-month-old baby boy. The child’s death was caused by an invasive, flesh-eating, group A streptococcus bacterial infection forty-eight hours after he was diagnosed by Dr. Kanarek as having only a viral cold or flu. The Estate’s claim at trial was that the child could have been successfully treated with antibiotics if the child had been correctly diagnosed when he was seen by Dr. Kanarek. The defense’s position was that the child did not yet have the deadly infection, which is extremely fast acting, when he was seen by Dr. Kanarek and that Dr. Kanarek was therefore not negligent in his treatment of the child.

The trial transcript reflects a highly contentious and raucous five-day jury trial, fraught with objections and bench conferences. On two occasions, the trial judge cleared the courtroom due to the inappropriate conduct of the attorneys, at which time the trial judge held private, off-the-record discussions with the attorneys.

After the jury returned its verdict finding no liability on the part of the defense, the Estate moved for a new trial, arguing that the totality of defense counsel’s tactics and behavior deprived the Estate of a fair trial. The alleged improprieties consisted of verbal behavior that is reflected in the record as well as nonverbal behavior that is not reflected in the record but which occurred in the presence of the jury. During the course of the trial, the Estate never moved for a mistrial. Instead, on several occasions when the court sustained the Estate’s repeated objections regarding defense counsel’s inappropriate behavior, the Estate specifically stated that it was not moving for a mistrial.

Several weeks after the trial, at the conclusion of the initial hearing on the Estate’s motion for new trial, the presiding judge made the following statements on the record:

The trial was extraordinary in that I cleared the courtroom twice. Come February of next year, I will have been on the bench 20 years.... I[ ] have been a member of the bar since June, 1976. Even as a prosecutor, even in conversations with my colleagues, I can’t think of running into a scenario where because of the conduct, not of the litigants, not of the litigants, but the conduct of counsel — and to be clear, it was Mr. Jose-pher’s conduct, that ha[s] risen to the level of causing me grave concern as to the fairness of this trial....
Again, this trial was extraordinary, not because it was a medical mal, not because unfortunately, it was a baby that died. It was extraordinary because of the amount of time that was dedicated to managing the defense’s behavior....

The trial judge further asserted that what happened during the course of the trial could not be gleaned from the cold record in this case. Because the Estate had just filed a memorandum in response to one filed by the defense, the trial judge offered the defense an opportunity to file a “further written reply” to the Estate’s memorandum. The trial judge stated at the end of the hearing that she would “go back and review [her] notes in light of [the parties’] legal arguments,” particularly the defense’s argument that the Estate waived its motion for new trial by failing to move for a mistrial during trial. Three days later and before the trial judge ruled on the motion for new trial, the defense filed a motion to disqualify the trial judge based on her comments at the hearing on the motion for new trial. Upon finding that the motion to disqualify was legally sufficient, irrespective of its merits, the trial judge granted the motion.

Because the presiding trial judge had witnessed firsthand the alleged inappropriate conduct of counsel during the course of trial, much of which was alleged to be outside the scope of the transcribed record, the Estate attempted to take the deposition of the trial judge for the benefit of the successor judge who would rule on the motion for the new trial. The defense moved for a protective order, which was granted by the first successor judge.

The first successor judge then recused herself before ruling on the motion for new trial, and the case was reassigned to a second successor judge. Before the second successor judge ruled on the motion for new trial, she was rotated to another division and the case was assigned to yet a third successor judge. The third and final successor judge held a hearing on the motion for new trial and stated the following:

Well, I am going to have to rule on this, but I think there is no debate [regarding] the difficulty a successor judge has in making these assessments of what went on during a trial.
I think you all agree that is hard to do based — even if I had the whole transcript in front of me of this trial, it would be hard to do. But I — I have no choice, given the fact that I am [the] current judge on this case.
But I just — I think it is very difficult for any successor judge to make the kind of assessments that need to be made about what impact on a jury certain behavior has. Very difficult for me to do. And I think when a judge is disqualified^] ... it ... put[s] a successor judge in a difficult position on properly assessing the merits of a motion for a new trial. But there is no choice here given the fact of the disqualification.
fflt’s not like an appellate court. The appellate court has — I agree with you there are issues that a trial judge addresses that are standards that are also addressed by the appellate court, but they are doing two different things.
The 2nd DCA is not doing the same thing that [the presiding judge] would have been doing in a motion for new trial, having observed — and I am not suggesting — I don’t know what [the presiding judge] would have done. But there is no doubt in my mind that she would have been in a better position than I am to address this motion.

The successor judge also contemplated, without any apparent resolution, what weight should be given to the fact that the presiding judge was not available to rule on the motion due to defense counsel’s motion to disqualify her, which the presiding judge was required to grant based on its legal sufficiency without regard to its merits. The successor judge expressed on the record his concern that defense counsel’s tactic gave the defense an unfair advantage by frustrating the court’s fair consideration of the motion for new trial.

After the hearing, the successor judge entered an order denying the Estate’s motion for new trial. It is not clear from the record of the hearing or the order of denial whether the successor judge reviewed the entire trial transcript before denying the motion.

On appeal, the Estate argues that the successor judge erred in denying its motion for new trial when the prejudice caused by the totality of defense counsel’s conduct denied the Estate a fair trial and when such totality and prejudice could not be gleaned from a review of the cold record in this case.

Trial judges are given broad discretion in ruling on a motion for a new trial. Cloud v. Fallis, 110 So.2d 669, 673 (Fla.1959). Where the totality of the misconduct of counsel is so pervasive as to raise doubts as to the overall fairness of the trial proceedings, a new trial may be necessary. Manhardt v. Tamton, 832 So.2d 129, 132 (Fla. 2d DCA 2002).

Here, the successor judge who ruled on the motion for new trial was not the trial judge who observed the alleged misconduct of defense counsel that was purportedly so pervasive as to call the fairness of the trial into serious question. In a civil case, when unusual circumstances — such as death or an involuntary recusal — render the presiding trial judge completely unavailable to hear a motion for new trial, a successor judge should l-eview the entire trial court record and rule on the motion to the best of his or her ability. See Nat'l Healthcorp Ltd. P’ship v. Cascio, 725 So.2d 1190, 1193-94 (Fla. 2d DCA 1998). If, after reviewing the entire record, the successor judge determines that a particular credibility issue exists which prevents the trial court from adequately ruling on the merits of the motion for new trial, the successor judge may grant the motion and explain in a written order the specific circumstances justifying the new trial, without ruling on the merits of the new trial. Id. at 1194 (citing Fla. R. Civ. P. 1.530(f)).

In this case, the successor judge who ultimately ruled on the motion for new trial openly expressed concern that the presiding trial judge, not he, was in the best position to address the motion for new trial given that the motion was based on defense counsel’s conduct during the entire course of the trial, much of which was alleged to be outside the scope of the transcribed record. His concern was underscored by the fact that the presiding trial judge had already openly expressed grave concern for the fairness of the trial given the totality of defense counsel’s behavior, which the presiding trial judge believed would not be adequately reflected in the record.

While it is well established that a successor judge may rule on a motion for new trial, a successor judge’s ruling is afforded less deference on appeal than that of a presiding judge. See Cascio, 725 So.2d at 1193 (citing Wolkowsky v. Goodkind, 153 Fla. 267, 14 So.2d 398, 402 (1943), and Wohlfiel v. Morris, 122 So.2d 235, 236-37 (Fla. 2d DCA 1960)). This is because a presiding trial judge is in a much better position to make such a ruling given that the presiding trial judge witnessed the trial firsthand. In fact, a successor judge is in no better a position than the appellate court to make such a ruling. See Peterson v. Peterson, 929 So.2d 38, 39 (Fla. 4th DCA 2006). This court has recognized that a successor judge may be required to grant a new trial as a matter of law when the successor judge did not observe factors, such as the demeanor or credibility of a witness, that could have been the basis for the granting of a new trial by the presiding trial judge. See Cascio, 725 So.2d at 1194. In reviewing a successor judge’s ruling in such a situation, the appellate court engages in a review that is more in the nature of a de novo review.

In this case, because of the particular credibility issues concerning defense counsel’s courtroom behavior — much of which was alleged to be nonverbal and, by its nature, not reflected in the transcribed record — the successor judge was not in a position to fairly rule on the merits of the motion for new trial. See generally Rose Hall, Ltd. v. Chase Manhattan Overseas Banking Corp., 576 F.Supp. 107, 125 (D.Del.1983) (discussing successor judge’s duty under Federal Rule of Civil Procedure 63 to grant new trial when credibility issues preclude him or her from adequately addressing the merits of the motion for new trial). In short, this ease is precisely the “extraordinary case” we referred to in Cascio, 725 So.2d at 1191, where “the successor judge may ... grant a new trial on the ground that he cannot fairly rule upon the specific motion for new trial in light of particular credibility issues.” Id. at 1193-94. While the issue in Cascio involved the manifest weight of the evidence, we believe that the alleged improper conduct of trial counsel is an analogous issue of credibility. It appears that the successor judge in this case felt constrained to rule on the merits of the motion for new trial, even though a granting of the motion without consideration of the merits would have been consistent with this court’s holding in Cascio. The successor judge erred in not following his instincts and, instead, denying the motion for new trial. A new trial must be granted where, as here, defense counsel’s tactics prevented the presiding trial judge, who witnessed the inappropriate behavior, from considering and ruling on whether the totality of his behavior deprived the parties of a fair trial.

Accordingly, we reverse the final judgment and remand for a new trial.

DAVIS and KELLY, JJ„ Concur.

      . We note that where a party has objected to errors at trial, it is not necessary for that party to move for a mistrial during the course of the trial in order to preserve the issue for purposes of a motion for new trial filed in the trial court. See City of Tampa v. Companioni, 26 So.3d 598, 599 (Fla. 2d DCA 2009), review granted, 23 So.3d 711 (Fla.2010); Robinson v. State, 989 So.2d 747, 750 (Fla. 2d DCA 2008); Nigro v. Brady, 731 So.2d 54, 56 (Fla. 4th DCA 1999).


author: KELLY, Judge.

text:
    SNAVELY SIESTA ASSOCIATES, LLC, an Ohio Limited Liability Company, Appellant, v. Richard C. SENKER, Trustee of the Richard C. Senker and Patricia A. Senker Land Trust, a Florida trust, Appellee.
    No. 2D08-5044.
    District Court of Appeal of Florida, Second District.
    May 21, 2010.

      Leslie Wulfsohn Loftus and L. Norman Vaughan-Birch of Kirk Pinkerton, P.A., Sarasota, and Charles V. Longo, Pro Hac Vice, Beachwood, OH, for Appellant.
    Stuart C. Markman and Kristin A. Norse, and Robert W. Ritsch, Of Counsel, Kynes, Markman & Felman, P.A., Tampa, and Sheryl A. Edwards of The Edwards Law Firm, PL, Sarasota, for Appellee.
   KELLY, Judge.

Snavely Siesta Associates, LLC, an Ohio real estate developer, appeals a partial final judgment in favor of Richard C. Senker, as Trustee of the Richard C. Senker and Patricia A. Senker Land Trust. The judgment rescinds a condominium purchase agreement and orders Snavely to return Senker’s deposits based on the trial court’s determination that Snavely violated the Interstate Land Sales Full Disclosure Act (the Act), 15 U.S.C. § 1701-20 (2005), when it failed to provide Senker with a property report before the purchase contract was signed. We conclude that the contract obligates Snavely to complete construction of the condominium within two years and therefore it is exempt from the requirements of the Act. See 15 U.S.C. § 1702(a)(2). Accordingly, we reverse the judgment in favor of Senker.

Senker contracted with Snavely to purchase a condominium at Summer Cove, a condominium project on Siesta Key in Sarasota. The contract contained a presale contingency provision allowing Snavely to terminate the agreement if it was unable to obtain purchase contracts for at least sixty percent of the units in the condominium within 180 days from the date the first purchaser signed a purchase agreement. The contract specified that time was of the essence and that the condominium would be completed in two years. It also contained a force majeure provision stating that “the date for completion may be extended by reason of delays incurred by the circumstances beyond the Seller’s control, such as acts of God, or any other grounds cognizable in Florida contract law as impossibility or frustration of performance, including without limitation, delays occasioned by rain, wind and lightning storms.”

Snavely built the condominium and, a little less than two years after entering into the contract with Senker, scheduled the closing and notified Senker of the closing date. In response, Senker notified Snavely that he was revoking the contract pursuant to section 718.503, Florida Statutes (2007), and he demanded a refund of his deposits. When Snavely declined, Senker sued. Ten months later, Senker amended his complaint to include a count for rescission pursuant to 15 U.S.C. § 1703(c) based on Snavely’s failure to provide a property report as required by 15 U.S.C. § 1703(a). Snavely claimed that it was exempt from the Act pursuant to 15 U.S.C. § 1702(a)(2), which in pertinent part provides that the Act shall not apply to “the sale or lease of any improved land on which there is a residential, commercial, condominium, or industrial building, or the sale or lease of land under a contract obligating the seller or lessor to erect such a building thereon within a period of two years.” Senker moved for summary judgment on his claim for rescission arguing that Snavely was not exempt because its contractual obligation to complete construction within two years was rendered “illusory” by the force majeure provision and the presale contingency provision. The trial court agreed and granted Senker’s motion for summary judgment.

Section 1703(a) of the Act makes it unlawful to sell or lease “any lot not exempt under section 1702” unless the seller complies with the provisions of the Act, including the requirement that the purchaser receive a printed property report prior to signing the purchase contract. If the seller has violated the Act, section 1703(c) gives the buyer the right to rescind the contract. At issue here is whether Snavely was exempt from the Act’s requirements because its contract obligated it to complete Senker’s condominium within two years. Because the Act is a federal statute, the meaning of the term “obligating” is a matter of federal law. Stein v. Paradigm Mirasol, LLC, 586 F.3d 849 (11th Cir.2009), cert. denied, — U.S. —, 130 S.Ct. 1903, 176 L.Ed.2d 366 (2010). In Stein, the Eleventh Circuit considered the meaning of the term “obligating” and concluded that “the § 1702(a)(2) exemption applies when a contract imposes a legal duty on the developer to perform his promise to construct the condominium or other building within two years.” Id. at 854. Whether the contract imposes a legally enforceable obligation to complete construction within two years is a matter of Florida law. Id. Thus, we must examine the presale contingency provision and the force majeure clause to determine whether, under Florida law, they relieve Snavely of its legal obligation to complete Senker’s condominium within two years.

We turn first to the presale contingency provision that allowed Snavely to terminate the purchase agreement if it did not obtain purchase contracts for at least sixty percent of the units in the condominium within 180 days from the date the first purchaser signed a purchase agreement. As is evident from its plain language, the objective of section 1702(a) is to ensure the timely completion of the building the purchaser is buying. In the case of a condominium unit, section 1702(a) presupposes that the building where the unit is located will actually be built. It is unreasonable to interpret section 1702(a) to require a seller to enter into a contract that would obligate it to go forward with construction of a particular unit even where it has not sold enough units to move forward with the entire project. Conditioning the sale of a unit on the seller’s ability to successfully sell enough units to make the entire project financially viable does not relieve the seller of its distinct obligation to timely complete an individual buyer’s unit once that contingency is met and the sale of the unit is consummated.

Senker’s interpretation is also inconsistent with the regulations adopted by the Department of Housing and Urban Development (HUD). HUD regulations interpret section 1702(a)(2) of the Act as permitting inclusion of a “presale clause conditioning the sale of a unit on a certain percentage of sales of other units ... if [the presale clause] is legally binding on the parties and is for a period not to exceed 180 days.” 24 C.F.R. § 1710.5. Because HUD is the agency responsible for enforcement of the Act, its regulations are entitled to deference as an authoritative interpretation of the statute unless it appeal's from the statute or its legislative history that the agency’s interpretation is not one that Congress would have sanctioned. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 887, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). We see nothing in the language of the statute or its histoiy that convinces us that we should reject HUD’s interpretation.

We turn next to the force majeure provision. The purchase agreement signed by Senker includes language that “[t]he Unit ... shall be completed no later than two (2) years from the date the Purchaser signed this contract.” This language places Senker’s unit squarely within the two-year exemption of section 1702(a)(2). Even so, Senker maintains that the force majeure clause contained in the agreement removes the unit from the exemption. That clause states:

However, the date for completion may be extended by reason of delays incurred by circumstances beyond the Seller’s control, such as acts of God, or any other grounds cognizable in Florida contract law as impossibility or frustration of performance, including, without limitation, delays occasioned by rain, wind and lightning storms.

The Senkers argue this language renders the obligation to complete construction in two years illusory.

In support of this position, the Senkers argue that while a developer may include language that excuses failure to perform based on impossibility of performance or frustration of purpose, the language in Snavely’s contract excuses nonperformance “based on circumstances nebulously described as ‘beyond the Seller’s control’ ” and that it permits Snavely to delay performance “for routine problems that include ‘without limitation, delays occasioned by rain, wind and lightning storms.’ ” This interpretation overlooks the fact that the phrase “circumstances beyond the Seller’s control” and the phrase “without limitation, delays occasioned by rain, wind and lightning storms” are tethered to the phrase “such as acts of God, or any other grounds cognizable in Florida contract law as impossibility or frustration of performance.” This language restricts permissible delays to grounds that would be cognizable in Florida contract law as impossibility of performance or frustration of purpose while at the same time providing a nonexhaustive list of possible examples. As Snavely acknowledges, the obligation to complete construction within two years is not rendered illusory by a provision that recognizes impossibility of performance or frustration of purpose as excuses for a failure to perform within that time. See, e.g., Stein, 586 F.3d at 858 (recognizing that impossibility of performance excuses the obligation under the Act to complete construction within two years).

Because neither the presale contingency provision nor the force majeure clause relieved Snavely of its obligation to complete construction within two years, it was exempt from the provisions of the Act. Accordingly, we reverse the judgment in favor of Senker and remand for further proceedings consistent with this opinion.

Reversed and remanded.

WHATLEY and MORRIS, JJ., Concur.

      . As opposed to relying on HUD's regulations, we note that some cases have relied on HUD's interpretive guidelines when construing section 1702. See, e.g., Samara Dev. Corp. v. Marlow, 556 So.2d 1097 (Fla.1990); Aikin v. WCI Cmtys., Inc., 26 So.3d 691 (Fla. 2d DCA 2010). Those cases state that the interpretive guidelines should be afforded great deference when trying to ascertain the meaning of a federal statute. In stating that proposition, however, both cases cite decisions dealing with federal regulations, not guidelines. This raises the question of whether in those cases the courts made an independent determination, as a matter of state law, to afford greater deference to guidelines than afforded by federal courts or whether the decision was the result of a failure to appreciate the distinction between a federal regulation and an interpretive guideline. As explained in Stein v. Paradigm Mirasol, LLC, 586 F.3d 849, 858 n. 7 (11th Cir.2009), “[b]e-cause the HUD Guidelines are not published regulations subject to the rigors of the Administrative Procedure Act, including public notice and comment,' they do not deserve full Chevron deference. A guidelines position is entitled to only as much deference as it merits based on the 'thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.' " Id. (citations omitted) (referring to Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and quoting Reno v. Koray, 515 U.S. 50, 61, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995), and Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)).


author: KHOUZAM, Judge.

text:
    Robert E. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4215.
    District Court of Appeal of Florida, Second District.
    May 21, 2010.
    Robert E. Smith, pro se.
   KHOUZAM, Judge.

Robert E. Smith appeals the dismissal of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the dismissal and remand for the trial court to consider Smith’s motion.

At the time that the trial court dismissed the motion at issue here, Smith had a pending appeal in this court in case number 2D08-5917 challenging the denial of a prior postconviction motion. Our record does not reveal whether the issues pending in case number 2D08-5917 involved the same or similar issues presented in the motion that is now pending on appeal. If the grounds are the same, Smith’s motion may be subject to dismissal as successive. See Fla. R.Crim. P. 3.850(f). However, the postconviction court erred in dismissing for lack of jurisdiction solely due to the pending appeal in 2D08-5917. “A trial court has concurrent jurisdiction during the pendency of an appeal of a postconviction order to consider a second postconviction motion that raises new issues unrelated to the issues presented in the motion that is pending on appeal.” Brinson v. State, 25 So.3d 1255, 1256 (Fla. 2d DCA 2010) (citing Wheeler v. State, 918 So.2d 369 (Fla. 1st DCA 2005)).

Reversed and remanded.

ALTENBERND and WALLACE, JJ., Concur.


author: LEWIS, J.

text:
    Ronald Wayne HENDRICKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-357.
    District Court of Appeal of Florida, First District.
    May 26, 2010.

      D. Gray Thomas, Wm. J. Sheppard, and Bryan E. DeMaggio of Sheppard, White, Thomas & Kachergus, P.A., Jacksonville, for Appellant.
    Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, for Appellee.
   ON MOTION FOR REHEARING AND CERTIFICATION

LEWIS, J.

We deny Appellant’s Motion for Rehearing and Certification. On our own motion, we withdraw our previous opinion and substitute the following in its place.

Ronald Wayne Hendricks, Appellant, appeals his convictions for one count of battery and two counts of sexual battery on a child less than twelve years of age by a person eighteen years of age or older. Appellant raises five issues, three of which merit discussion. First, Appellant argues that the trial court abused its discretion in excluding evidence of his reputation for sexual morality. Second, he argues that the trial court committed per se reversible error by failing to invite objections from defense counsel after announcing its anticipated response to the jury’s request to view a portion of the trial transcript. Finally, and relatedly, Appellant argues that the trial court fundamentally erred in denying the jury’s request to view a portion of the transcript without advising the jury that it could request a “read-back.” For the reasons explained below, we find no reversible error. Accordingly, we affirm Appellant’s convictions and write to explain our reasoning as to the three issues that merit discussion.

I. FACTS

The State charged Appellant with four counts of sexual battery on a child less than twelve years of age. The victim was the daughter of Appellant’s former girlfriend, in whose home he had lived for several years as part of the family. The State’s evidence consisted of the victim’s testimony and a recording of an incriminating telephone conversation between Appellant and the victim, who was an adult by the time of trial. In his own defense, Appellant testified that he did not commit the charged offenses. He also introduced testimony from several witnesses who stated that he had a good reputation in the community for truth and veracity. Two of these witnesses, Appellant’s former wife and natural daughter, also would have testified that he had a reputation for sexual morality, but the trial court excluded this testimony based on the State’s motion in limine.

Appellant’s adult daughter testified that she knew “many, many, many people” who knew Appellant and that, when she was a child and Appellant was raising her, she had friends come to the home for sleepovers. She further testified that she knew Appellant’s reputation in the community for truth and veracity and that she “[didn’t] think it could be better.” Similarly, Appellant’s former wife testified that she knew “hundreds and hundreds” of people who knew Appellant, that Appellant had “outstanding morals and character,” and that he was “highly, highly respected.” Outside the jury’s presence, Appellant’s counsel advised the court that, if given the opportunity, both of these witnesses would testify that they knew Appellant’s reputation in the community for being sexually moral and that it was “excellent.” The trial court stood by its earlier ruling that this evidence was inadmissible.

After the jury retired to deliberate, it submitted the following written request to the trial court: “May we see the transcript of the testimony of [the victim] regarding the third charge related to the allegation about [Appellant’s] placing his penis on [the victim] and ejaculating[?]” In testifying about this offense, the victim stated that this memory bothered her, that it was “probably ... the hardest for [her] to talk about,” that it disturbed her, and that it was “horribly vivid in [her] head.” The incident occurred on the bed Appellant shared with the victim’s mother, and the victim recalled that Appellant first attempted to “force ... his penis into [her] vagina” and that “it wasn’t working because [she] was so small.” She explained that he then “started rubbing ... his penis against [her] vagina until ... he ejaculated on [her].”

The court considered the jury’s request to view this portion of the transcript outside the jury’s presence, stating, “I think the answer is no, rely on your memory.” There was no response to this statement from the attorneys, although the record shows that counsel for Appellant was present. After the court announced its anticipated response and received no objections, the jury was brought into the courtroom. To the jury, the trial court stated, “Ladies and gentlemen, I have your question about the transcript, and the short answer is, no. You have to rely on your recollection and reach your decision based on that. Thank you.” The jury then went back to the deliberation room. Later, it found Appellant guilty as charged of counts one and two, guilty of battery as a lesser-included offense of count three, and not guilty of count four. After the trial court sentenced Appellant, this appeal followed.

II. ANALYSIS

A. Exclusion of Evidence of Appellant’s Reputation for Sexual Morality

On appeal, Appellant argues that the exclusion of the evidence of his reputation for sexual morality was error because it was admissible under section 90.404(l)(a) and 90.405, Florida Statutes (2008). The State agrees that sections 90.404(l)(a) might support Appellant’s theory of admissibility, but it contends that section 90.405 presents an “insurmountable bar” to the admission of evidence that a person does not have the character trait necessary to commit acts of child molestation, as this trait is not susceptible to proof by reputation evidence. We agree with the State.

A trial court’s decision to admit or exclude evidence is typically reviewed for abuse of discretion. McCray v. State, 919 So.2d 647, 649 (Fla. 1st DCA 2006). However, a trial court’s discretion over such decisions is limited by the evidence code and the applicable case law, and its interpretation of those authorities is subject to de novo review. Id.

As a general rule, all relevant evidence is admissible unless it is specifically excluded by a rule of evidence. Bryan v. State, 533 So.2d 744, 746 (Fla.1988). Section 90.404(l)(a), Florida Statutes (2008), provides that “[ejvidence of a person’s character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion, except ... [ejvi-dence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the trait.” Under this rule, an accused is permitted to introduce evidence of any character trait pertinent to the charges against him despite the general proscription against character evidence. See id.

Section 90.405, Florida Statutes (2008), dictates the methods of proving character at trial. Under section 90.405(1), any time a person’s character is admissible, it may be proven by evidence of that person’s reputation. However, proof of a person’s character may not be made by specific instances of conduct unless that person’s character is “an essential element of a charge, claim, or defense.” § 90.405(2). A defendant may not offer proof of his character by admitting evidence of an individual’s opinion. See § 90.405 (listing the proper methods of proving character and omitting opinion testimony from the list); Charles W. Ehrhardt, Florida Evidence § 404.5, at 201 (2009 ed.). In contrast, reputation evidence may be admitted because “[wjhen many people in the community discuss and compare an issue, it is felt that the resulting community opinion is trustworthy.” Ehrhardt, § 405.1, at 283.

No Florida case has yet held that a person accused of child molestation may or may not introduce evidence of his reputation for sexual morality for the purpose of showing he does not have the character trait necessary for committing acts of child molestation. However, the Fifth District addressed this issue in dicta in Alvelo v. State, 769 So.2d 476, 477 (Fla. 5th DCA 2000). There, the defendant, who was accused of committing lewd acts upon a child, attempted to call “a string of witnesses to testify that [he] had never abused them or anyone they knew.” Id. at 477. Although the defendant in Alvelo apparently characterized this evidence as reputation evidence, it was clearly inadmissible as evidence of specific acts of conduct (or lack thereof). See Ehrhardt, § 404.5, at 201-02 n. 7. Regardless, in addressing this issue, the Fifth District observed that, “[ujnlike one’s reputation for honesty or peacefulness, traits that might be noticed by the community, whether one secretly molests children or does not would not be openly exhibited to the community.” Alvelo, 769 So.2d at 477. We agree with this statement, which was also embraced by the Third District in dicta in Russ v. State, 934 So.2d 527, 532 (Fla. 3d DCA 2006).

At issue in Russ was whether the trial court properly excluded evidence that the defendant had a reputation for non-violence and respect toward females, where he had been charged with lewd or lascivious exhibition and sexual battery on a person under the age of twelve. 934 So.2d at 531-32. Noting that “[i]t was not argued that Russ had acted violently,” the Third District found no abuse of discretion in the exclusion of such evidence. Id. at 532. The court went on to quote, with approval, the Fifth District’s observation in Alvelo that “whether one secretly molests children or does not would not be openly exhibited to the community.” Id. (quoting Alvelo, 769 So.2d at 477).

To date, Alvelo and Russ are the only Florida cases to have addressed, either in dicta or a holding, the issue of whether a defendant should be allowed to introduce evidence of his reputation for sexual morality to rebut a charge of a sexual offense against a child. However, several out-of-state cases have mentioned this issue, and the majority of those cases, in contradiction of Alvelo and Russ, indicate that evidence of the defendant’s sexual morality or “normalcy” is admissible when the defendant offers it to show that he does not have the character trait necessary to commit acts of child molestation. See, e.g., State v. Rhodes, 219 Ariz. 476, 200 P.3d 973, 976-77 (2008) (holding that evidence that a defendant had a reputation for sexual normalcy and appropriate behavior around children should have been admitted); U.S. v. John, 309 F.3d 298, 303 (5th Cir.2002) (noting that personal opinion and reputation testimony regarding sexual morality are admissible to show that defendant was not capable of engaging in sexual conduct with a child, where the issue was whether the trial court erred in failing to instruct the jury that such evidence could give rise to a reasonable doubt); Wheeler v. State, 67 S.W.3d 879, 882-83 (Tex.Crim.App.2002) (noting that the defendant “was entitled to proffer evidence of his good character (or propensity) for moral and safe relations with small children or young girls,” where the issue concerned the propriety of the State’s introducing specific acts of misconduct as rebuttal evidence); People v. McAlpin, 53 Cal.3d 1289, 283 Cal.Rptr. 382, 812 P.2d 563, 576-78 (1991) (holding that the trial court should have admitted evidence of the defendant’s reputation for “normalcy in his sexual tastes” but that its failure to do so was harmless); State v. Miller, 709 P.2d 350, 353-54 (Utah 1985) (indicating that evidence of the defendant’s reputation for sexual morality would have been admissible had it been offered but that evidence of specific acts was not). Notably, these out-of-state cases do not squarely address the distinction recognized by our sister court in Alvelo v. State, 769 So.2d 476, 477 (Fla. 5th DCA 2000), between traditionally admissible reputation evidence and evidence of a person’s reputation for sexual morality as it relates to a charge of a sexual offense against a child. See generally, e.g., State v. Rhodes, 219 Ariz. 476, 200 P.3d 973 (2008); U.S. v. John, 309 F.3d 298 (5th Cir.2002); Wheeler v. State, 67 S.W.3d 879 (Tex.Crim.App.2002); People v. McAlpin, 53 Cal.3d 1289, 283 Cal.Rptr. 382, 812 P.2d 563 (1991); State v. Miller, 709 P.2d 350 (Utah 1985). For example, although the Texas Court of Criminal Appeals in Wheeler v. State noted that “one might certainly have a reputation in the community concerning” the “conduct-oriented traits” of pedophilia and child sexual abuse and “the more general character trait for ‘safe and moral treatment of children,’ ” it did not acknowledge the unreliability of such a reputation due to the tendency of acts of child molestation to occur in secret, as the court in Alvelo did. See 67 S.W.3d at 883 n. 4.

In contrast, this key distinction was acknowledged in State v. Jackson, 46 Wash.App. 360, 730 P.2d 1361, 1364 (1986). In Jackson, the court held that a defendant’s reputation for “sexual morality and decency” was not admissible in a trial concerning a sexual offense against a child. The Jackson court provided the following reasoning:

The crimes of indecent liberties and incest concern sexual activity, which is normally an intimate, private affair not known to the community. One’s reputation for sexual activity, or lack thereof, may have no correlation to one’s actual sexual conduct. Simply put, one’s reputation for moral decency is not pertinent to whether one has committed indecent liberties or incest. The trial court properly refused to permit Jackson’s witnesses to testify concerning his reputation for sexual morality and decency.

730 P.2d at 1364. In dicta, the Jackson court also “doubt[ed] the validity” of the assertion that “sexual morality and decency is the specific trait pertinent to the charge of indecent liberties.” See id. However, the crux of its decision was the inherent unreliability of reputation evidence of that trait. See id. (concluding, that, “[s]imply put, one’s reputation for moral decency is not pertinent to whether one has committed indecent liberties or incest”) (emphasis added). Under the Jackson court’s reasoning, even if the trait of “sexual morality or decency” is itself pertinent to a charge of a sexual offense against a child, a person’s reputation concerning that trait is not pertinent, due to the nature of the crime as one that occurs in secret. See id. The Jackson decision was reaffirmed in State v. Spencer, where the court provided the following analysis:

[T]he [Jackson ] court was concerned with the reliability of such reputations given that sexual conduct of the nature alleged here normally does not occur in public. Implicit in the court’s analysis is the conclusion that reputations for truthfulness, peacefulness, etc., are more reliable and less likely to differ from reality because those traits are commonly displayed in public. Reputations concerning sexual conduct, however, are more likely to be based on speculation than on observed conduct. In addition, it is highly unlikely that a person will discuss his or her immoral or indecent sexual conduct; therefore, a person’s reputation for sexual conduct is not likely to reflect immoral or indecent conduct.

84 Wash.App. 1010 (Wash.Ct.App.1996) (unreported), No. 35276-8-I, 1996 WL 665931, at *4 (Wash.Ct.App. Nov. 18, 1996). We agree with the reasoning in Jackson and Spencer, which is based on the same concerns expressed in Alvelo, 769 So.2d at 477, regarding the susceptibility of the particular character trait at issue to proof by reputation evidence.

Notably, the Jackson court made its decision after considering rules of evidence similar to those of Florida. See 730 P.2d at 1363-64 (quoting Washington’s eviden-tiary rule 404(a) and acknowledging that an individual’s opinion is not admissible to prove character); compare Wash. R. Evid. 404(a) (“Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except ... [e]vidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same.”) with § 90.404(1), Fla. Stat. (2008) (“Evidence of a person’s character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion, except ... [e]vidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the trait.”); compare Wash. R. Evid. 405 (providing that when character evidence is admissible, “proof may be made by testimony as to reputation,” that inquiry into relevant specific instances of conduct is allowable on cross-examination, and that proof of character may be made evidence of specific instances of conduct when “character or a trait of character is an essential element of a charge, claim, or defense”) with § 90.405, Fla. Stat. (2008) (providing that “[w]hen evidence of the character of a person or of a trait of that person’s character is admissible, proof may be made by testimony about that person’s reputation” and that “[w]hen character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may be made of specific instances of that person’s conduct”). Additionally, the reasoning of Jackson and Spencer is particularly important for the purposes of the instant case because in Florida the reliability of reputation testimony is an issue of admissibility. See Larzelere v. State, 676 So.2d 394, 399 (Fla.1996) (explaining that “the community from which the reputation testimony is drawn [must be] sufficiently broad to provide the witness with adequate knowledge to give a reliable assessment”); accord Ehrhardt, § 405.1, at 283 (explaining that “[w]hen many people in the community discuss and compare an issue, it is felt that the resulting community opinion is trustworthy”).

In short, we agree with the point in Alvelo, Russ, Jackson, and Spencer that because a person’s tendency, or lack thereof, to commit acts of child molestation is not something that a community tends to have knowledge of, testimony concerning a person’s reputation for having such a trait is inherently unreliable and distinguishable from traditionally admissible reputation evidence. For this reason, we’ find no abuse of discretion in the exclusion of such evidence in the instant case. To the extent Appellant attempted to introduce evidence only of his reputation for having appropriate sexual relationships with adults, it was within the trial court’s discretion to exclude it as either irrelevant or substantially more likely to confuse the issues than to offer probative value: Cf. Russ v. State, 934 So.2d 527, 532 (Fla. 3d DCA 2006) (holding that the defendant’s reputation “for respectfulness toward women” had no bearing on whether he committed lewd or lascivious exhibition or sexual battery on a child); see § 90.403, Fla. Stat. (2008) (providing that “[r]elevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence”).

B. The Jury’s Request to View a Portion of the Trial Transcript During Deliberations

Having found no error in the trial court’s exclusion of the evidence of Appellant’s reputation for sexual morality, we turn to his arguments, raised for the first time on appeal, concerning the trial court’s handling of the jury’s request to view a portion of the trial transcript. First, Appellant argues that the trial court committed per se reversible error by failing to afford him an opportunity to participate in a discussion of the action to be taken in response to the jury’s request. Second, Appellant argues that the trial court’s instruction was reversible error because it suggested that a read-back of trial testimony was impermissible as a matter of law, as opposed to discretionary. Both of these arguments relate to Florida Rule of Criminal Procedure 3.410, which provides as follows: After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them the additional instructions or may order the testimony read to them. The instructions shall be given and the testimony read only after notice to the prosecuting attorney and to counsel for the defendant.

(i) Notice under Rule 3.410

Appellant’s argument that the trial court’s failure to request objections to its proposed instruction violated the notice requirements of Rule 3.410, thus constituting per se reversible error, is based on Ivory v. State, 351 So.2d 26 (Fla.1977), and Bradley v. State, 513 So.2d 112, 112-13 (Fla.1987). In Ivory, during deliberations, the jury sent notes to the trial court requesting the jury instructions and evidentiary documents. 351 So.2d at 27. The trial court provided those documents to the jury “[w]ithout notifying the defendant, his counsel, or counsel for the state, and outside of their presence.” Id. The supreme court determined that this error required a new trial, explaining its holding as follows:

Any communication with the jury outside the presence of the prosecutor, the defendant, and defendant’s counsel is so fraught with potential prejudice that it cannot be considered harmless.... We now hold that it is prejudicial error for a trial judge to respond to a request from the jury without the prosecuting attorney, the defendant, and defendant’s counsel being present and having the opportunity to participate in the discussion of the action to be taken on the jury’s request. This right to participate includes the right to place objections on record as well as the right to make full argument as to the reasons the jury’s request should or should not be honored.

Id. at 28.

In Bradley v. State, 513 So.2d 112 (Fla.1987), the supreme court was confronted with a record showing a violation of Rule 3.410 similar to the one at issue in Ivory. The trial court in Bradley responded in writing to the jury’s request during deliberations to read a police report. 513 So.2d at 112. The record in Bradley did not reflect whether the trial court gave notice to the prosecutor and defense counsel before sending the note back to the jury. Id. For this reason, the Bradley court held that reversal was required. Id. at 112-13. Notably, at oral argument, the appellant’s counsel admitted that defense counsel was present during the trial court’s consideration of the jury’s inquiry. Id. at 114. Based on this concession, the State requested that the court remand the case for a reconstruction of the record to determine who was present. Id. The supreme court rejected this request and the argument “that 'presence of counsel is all that is required under rule 3.410.” Id. The court then made the following observations:

The right to participate, set forth in Ivory, includes the right to place objections on the record as well as the right to make full argument as to why the jury request should or should not be honored.... ‘Notice is not dispositive. The failure to respond in open court is alone sufficient to find error.’

Bradley, 513 So.2d at 114 (citations omitted).

In Thomas v. State, 730 So.2d 667, 668-69 (Fla.1998), the supreme court clarified its position regarding the requirements of Rule 3.410. There, the bailiff had informed the trial court that the jury had a question concerning a notation on one of the State’s exhibits. Id. at 667. The trial court instructed the bailiff “that they should consider [the notation] as part of the evidence and continue to deliberate on their verdict.” Id. The trial court advised the prosecutor and defense counsel of this communication after it occurred but before the jury returned a verdict and asked whether they had any objections to the process the court used to communicate with the jury. Id. at 667-68. Both attorneys stated that they had no objection. Id. at 668. On appeal, citing Ivory and its progeny, the defendant argued that the trial court’s communication with the jury constituted per se reversible error. Id. The supreme court declined to find reversible error, however, due to defense counsel’s affirmative waiver of the issue. Id. at 668-69. The Thomas court noted that “[t]he per se reversible error rule announced in Ivory is prophylactic in nature and must be invoked by contemporaneous objection at trial.” Id. at 668. The Thomas court also emphasized that the “particular evil rule 3.410 and the per se error standard of Ivory were designed to prevent is the lack of notice to counsel, coupled with the lost opportunity for counsel to argue and to place objections on the record” and that “an opportunity to contribute after the instruction has been given is insufficient.” 730 So.2d at 668 (quoting Mills v. State, 620 So.2d 1006, 1008 (Fla.1993) (internal citations omitted)).

Based on the Thomas court’s clarification that counsel must lodge a contemporaneous objection when given the opportunity to do so, this Court, in Paige v. State, 802 So.2d 1161, 1164 (Fla. 1st DCA 2001), affirmed the defendant’s convictions, despite the trial court’s failure to invite defense counsel to comment on the jury’s request for re-instruction. The Paige Court explained that affirmance was proper “[b]ecause defense counsel and defendant were present in the courtroom at the time of the asserted error and did not make a contemporaneous objection at trial.” Paige, 802 So.2d at 1164.

Here, Appellant requests that we reverse his convictions and require a new trial because the trial court did not expressly invite his attorney to object to its anticipated answer to the jury’s question. We decline to do so because Appellant received both notice and an opportunity to be heard, as required under Rule 3.410 and the case law interpreting it. In stating, “I think the answer is no, rely on your memory,” the trial court gave Appellant’s attorney the opportunity to argue for a different answer. Like the defense counsel in Paige, Appellant’s attorney simply chose not to object. See 802 So.2d at 1164. The jury was not in the courtroom yet, and nothing in the record indicates that the trial court cut off Appellant’s right to respond. We have no reason to believe that the trial court would not have listened to a full argument if defense counsel had attempted to make one. Therefore, we do not agree with Appellant’s claim that the trial court denied him appropriate notice and an opportunity to be heard under Rule 3.410.

(ii) Availability of a “Read-back” of Trial Testimony

Finally, we consider Appellant’s argument that the trial court reversibly erred in instructing the jury that it had to rely on its memory. Appellant contends that the trial court should have instructed the jury that, at the trial court’s discretion, it could hear a read-back of portions of the testimony, even though he did not request such an instruction. He further argues that the error in the instant case cannot be considered harmless because if the jury had been permitted to review the testimony of the victim, it may have found him not guilty as to count III or determined that the victim lacked credibility as to all of her allegations. Thus, Appellant claims that the trial court was required not only to advise the jury of the rules governing read-backs but also to take the additional step of reading back the testimony.

Although Appellant does not argue that the omission of the additional instruction or the denial of a read-back was fundamental error, such a conclusion is required for reversal because Appellant failed to object to the trial court’s instruction either when it was announced outside the jury’s presence, when it was read to the jury, or otherwise. See State v. Delva, 575 So.2d 643, 644 (Fla.1991) (noting that an error in the trial court’s instructions to the jury is subject to the contemporaneous objection rule and may not be raised on appeal absent fundamental error). Despite Appellant’s failure to argue fundamental error, we consider whether the purported error is of a fundamental nature because it is an appellate court’s “unrenun-ciable judicial duty” to correct fundamental error even if it is not raised. See Bain v. State, 730 So.2d 296, 302 (Fla. 2d DCA 1999) (called into doubt on other grounds in State v. Jefferson, 758 So.2d 661, 664 (Fla.2000)); see also I.A. v. H.H., 710 So.2d 162, 165 (Fla. 2d DCA 1998) (noting that it is an appellate court’s “duty to notice and correct ... fundamental errors even when they have not been identified by the parties”).

Before proceeding to fundamental error analysis, we will review the general standards governing a trial court’s response to a jury’s request to either view a trial transcript or have testimony read back to it. There is no rule of criminal procedure providing that a jury may view a transcript of the proceedings. See Fla. R.Crim. P. 3.400(a) (omitting transcripts from the list of items a jury may view in the deliberation room). In contrast, Rule 3.410 provides that a trial court may, in its discretion, have portions of the trial testimony read back to the jury upon request. Fla. R.Crim. P. 3.410. A trial court’s discretion over whether to allow a read-back of testimony is wide. Avila v. State, 781 So.2d 413, 415 (Fla. 4th DCA 2001). In fact, the Florida Supreme Court has observed that “courts have found no abuse of discretion even where the trial judge has, without much consideration, entirely rejected the jury’s request for a read back.” Francis v. State, 808 So.2d 110, 130 (Fla.2001) (citing McKee v. State, 712 So.2d 837, 838 (Fla. 2d DCA 1998)).

Despite the wide latitude a trial court is accorded in exercising its discretion to either read back testimony or not, a trial court “may not mislead the jury into thinking that a readback is prohibited.” Avila, 781 So.2d at 415. The reasoning behind this rule is that juries should not be prospectively discouraged from requesting read-backs of other portions of the trial simply because the trial court has denied its request for a read-back of a particular portion. See Johnson v. State, 10 So.3d 680, 681 (Fla. 3d DCA 2009). In Avila v. State, the Fourth District found the trial court’s instructions misleading where the jury requested a read-back and the trial court responded by stating that no transcripts were available and that the jury was required to rely on its own recollection. 781 So.2d at 415-16. The Third District cited Avila with approval in Johnson v. State, where it found error, albeit harmless, in the trial court’s pre-deliberation instruction that there was not a “simultaneous transcript” of the trial and that the jury would have to rely on its own recollection if it had any questions regarding the facts. Johnson, 10 So.3d at 681.

However, the Third District distinguished Avila in Hazuri v. State, 23 So.3d 857 (Fla. 3d DCA 2009), where the trial court gave an instruction similar to the one at issue in the instant case. In Hazuri,, the jury sent a note to the court requesting trial transcripts. 23 So.3d at 857. The trial court informed the prosecutor and defense counsel that it believed “the accurate and correct response is that they must rely on their own collective recollection of the evidence.” Id. at 858. Defense counsel objected based on the failure of the suggested instruction to inform the jury of the availability of a read-back. Id. The trial court overruled the objection and instructed the jury as it had announced it would. Id. On appeal, the Third District held that the instruction was “fair and legally accurate” and that the trial court was under no obligation, in response to the request for transcripts, to inform the jury that a read-back may be available upon request. Id. at 858-59. The basis of the Hazuri court’s distinction of Avila was that in Avila, the jury had requested a read-back, while in Hazuri, it had requested to view the transcripts. Hazuri, 23 So.3d at 859-60.

The Fourth District repudiated this distinction in Barrow v. State, 27 So.3d 211 (Fla. 4th DCA 2010). There, as in Hazuri, the jury requested to view the trial transcript. Barrow, 27 So.3d at 215. Both the prosecutor and defense counsel suggested that the court advise the jury of its right to request a read-back. Id. at 215-16. The court, however, refused to give such an instruction, and instead told the jury, “There are no transcripts available for your review. Please rely on the evidence presented during the proceedings.” Id. at 216. The Fourth District held that this instruction was misleading and, thus, constituted reversible error. Id. at 217-18. Accordingly, the Barrow court certified conflict with Hazuri. Id. at 218.

This Court has not yet considered in a written opinion whether it is error for a trial court to deny a jury’s request to view a portion of the trial transcript without informing the jury that a read-back of testimony may be permissible at the trial court’s discretion. However, we will leave that determination for another day. For the purposes of the instant case, we will assume arguendo that the instruction given was erroneous and proceed to a determination of whether any error in the instruction rose to the level of fundamental error.

Error may be harmful and yet not fundamental. Reed v. State, 837 So.2d 366, 370 (Fla.2002). Fundamental error is “error that ‘reaches down into the validity of the trial itself to the extent that a verdict of guilty ... could not have been obtained without the assistance of the alleged error.’ ” Brooks v. State, 762 So.2d 879, 899 (Fla.2000) (quoting McDonald v. State, 743 So.2d 501, 505 (Fla.1999)). Moreover, error is fundamental only if it “goes to the very heart of the judicial process” and “extinguishes a party’s right to a fair trial,” such that it results in a miscarriage of justice. Martinez v. State, 933 So.2d 1155, 1159 (Fla. 3d DCA 2006).

The Florida Supreme Court has cautioned that “[t]he doctrine of fundamental error should be applied only in rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.” Smith v. State, 521 So.2d 106, 108 (Fla.1988). As this Court has explained, one reason for appellate courts’ reluctance to find fundamental error is that “[w]e do not want to encourage the creation of ‘gotchas’ whereby the defense is allowed to sit on its rights [and] say nothing until after it sees whether the jury returns an adverse verdict.” Jones v. State, 571 So.2d 1374, 1376 n. 3 (Fla. 1st DCA 1990); accord Sailor v. State, 816 So.2d 182, 184 (Fla. 1st DCA 2002) (noting that the contemporaneous objection rule was designed to prevent the type of “gamesmanship” that occurs when “a party waits to see if the jury renders a favorable verdict while the party withholds a claim of error in the process”). For this reason, it has been established that an error of omission in jury instructions is fundamental only when “the omission is pertinent or material to what the jury must consider in order to convict.” State v. Delva, 575 So.2d 643, 645 (Fla.1991).

In recent cases considering whether a trial court may deny a request to view a portion of the trial transcript without simultaneously informing the jury of the rules governing read-backs, the district courts have either specifically noted that the issue was preserved or recited facts showing preservation. E.g., Barrow, 27 So.3d at 215-16 (noting that the prosecutor suggested that the trial judge tell the jury it could request read-backs and that the defense attorney affirmatively requested such an instruction); Hazuri, 23 So.3d at 858 (quoting trial counsel’s request for an instruction regarding the read-back option); Johnson, 10 So.3d at 681 (noting that trial counsel preserved the issue by objecting to the instructions to the jury that no transcripts were available and that it had to “rely upon [its] own recollection of the evidence”); Avila, 781 So.2d at 415 (finding the issue concerning the trial court’s failure to advise the jury of its right to request a read-back preserved by trial counsel’s request for a read-back after the jury asked to review a portion of the testimony); Roper v. State, 608 So.2d 533, 533-34 (Fla. 5th DCA 1992) (noting defense counsel’s objection to the court’s response to the jury’s request to “see” testimony). Because the issue was preserved, the courts in those cases were not called upon to consider fundamental error.

In contrast, in Farrow v. State, 573 So.2d 161, 162-63 (Fla. 4th DCA 1990), the Fourth District considered whether it was fundamental error for the trial court to announce to the jury during voir dire, “[Y]ou’re going to have to listen very carefully to the testimony of the witnesses because you’re only going to hear it once. The court stenographer is not going to be reading back to you the testimony of the witnesses.” The Farrow court declined to find fundamental error, explaining that while the instruction was error, it did not “go to the merits of the case” and did not deprive the defendant of a fair trial. 573 So.2d at 163. The court noted that to find fundamental error would encourage gamesmanship. See id. Specifically, the court explained, “It would be far better for the defendant not to object, even though the error is easily curable, and await the outcome of the trial. If the defendant is convicted, then defense counsel can be assured of securing a reversal on appeal because of the ‘fundamental’ error which the judge committed in voir dire.” Id. The same risk is present in cases where the jury asks to view a specific portion of the transcript and defense counsel remains silent as the trial court denies the request and fails to explain the rules governing read-backs.

Despite this risk, in LaMonte v. State, 145 So.2d 889, 893 (Fla. 2d DCA 1962), the court found fundamental error when considering the related issue of whether the trial court erred in denying a jury’s affirmative request for a read-back even though defense counsel did not object to the ruling. In LaMonte, the State presented an entirely circumstantial case of robbery, and the only competent evidence that tied the defendant to the robbery was a mask that was found in his home. 145 So.2d at 891-92. The police officer who found the mask first testified that he found it “when he got a chair to look up into the attic and that when he did he noticed this mask on the floor.” Id. at 892. Later, he clarified his testimony, stating that he found the mask on the floor of a closet. Id. 892-93. The jury found this testimony important to its decision, as it illustrated by asking during deliberations “whether the rubber mask was found on the floor of the closet or whether it was found in the attic.” Id. at 892. In posing this question, the jury suggested that the court either answer the question or have the testimony on this issue repeated. Id. The trial court denied the jury’s request, stating that it could not comment on the evidence or tell the jury what was in the record and that the jury had already heard the testimony. Id. Even though defense counsel did not make a contemporaneous objection, the appellate court reversed, holding that the trial court should have read back the testimony because “there was considerable doubt in the jury’s mind concerning the very testimony which they wished read to them and this testimony was material to the case.” Id. at 893(quoting Penton v. State, 106 So.2d 577, 580 (Fla. 2d DCA 1958) (finding reversible error where defense counsel agreed to the jury’s request for a read-back of material testimony, but the trial court failed to have it read back due to confusion as to whether a transcript was available)).

We disagree with LaMonte. In La-Monte, the court did not consider the possibility that defense counsel’s silence may have been strategic. Of course, we do not know defense counsel’s reason for not going along with the jury’s request in La-Monte, but there could be any number of reasons, including that defense counsel hoped the jury would remain confused about the officer’s testimony and, therefore, be unable to reach a verdict beyond a reasonable doubt. To find fundamental error in a trial court’s refusal to read back testimony would allow defense counsel to sit back in silence while the trial court errs and then raise the error on appeal once it is clear that the strategy failed. Such an approach is the type of gamesmanship the contemporaneous objection rule was designed to prevent. See Sailor, 816 So.2d at 184; accord Farrow, 573 So.2d at 163; cf. Coulliette v. State, 949 So.2d 1078, 1078 (Fla. 1st DCA 2007) (declining to find fundamental error in improper questioning of the defendant where the court could not “rule out the possibility that defense counsel may have allowed such questioning to continue as part of her trial strategy”).

The facts of the instant case illustrate the point that the failure of a defense attorney to request instructions on the availability of a read-back may be strategic. In this case, the testimony the jury requested was material to count III. However, the testimony was detailed, descriptive, and disturbing, and if the jury remembered and believed that testimony, it established the crime of sexual battery on a child. See § 794.011(l)(h), Florida Statutes (1993) (defining sexual battery, in pertinent part, as “oral, anal, or vaginal penetration by, or union with, the sexual organ of another”) (emphasis added). Additionally, the testimony included the victim’s statements that she had a vivid memory about this incident and that it was the offense that bothered her the most. While we do not know the defense counsel’s reasons for failing to request that the jury be informed that this testimony could be read back, we cannot ignore the fact that defense counsel may have believed that it was not in Appellant’s best interests to have this testimony emphasized. For this reason, we decline to find fundamental error in the trial court’s failure to advise the jury, sua sponte, of the availability of a read-back at the court’s discretion.

Finding no preserved, reversible error, we AFFIRM.

No further motions for rehearing will be entertained. The Clerk is directed to issue the mandate forthwith.

VAN NORTWICK and ROWE, JJ., concur.

      . It should be noted that Jackson is in conflict with an opinion issued by its sister court in State v. Griswold, 98 Wash.App. 817, 991 P.2d 657, 663 (2000) (abrogated on other grounds by State v. DeVincentis, 150 Wash.2d 11, 74 P.3d 119 (2003)) (disagreeing with Jackson and relying on State v. Thomas, 110 Wash.2d 859, 757 P.2d 512 (1988), where the issue was not whether such reputation evidence was admissible, but rather whether an instruction on character evidence should have been given once evidence of the defendant’s reputation for sexual morality had been admitted). However, we are not persuaded by Griswold. Additionally, we note that the same court that issued Griswold later agreed with the Jackson court's observation that evidence of the defendant’s reputation for sexual morality "may be at odds with his actual character.” State v. Woods, 117 Wash.App. 278, 70 P.3d 976, 978 n. 1 (2003). Thus, the key disagreement among the intermediate appellate courts of Washington is over whether the inherent unreliability of a person’s reputation for being sexually moral in one's relationships with children renders such evidence inadmissible, not whether such evidence is in fact unreliable. Griswold holds that the rules of evidence require admission of such evidence, 991 P.2d at 663, while Jackson holds that they do not, 730 P.2d at 1364, based on considerations similar to those expressed by our sister courts in Alvelo, 769 So.2d at 477, and Russ, 934 So.2d at 532.

        Griswold also expresses disagreement with the dicta in Jackson to the effect that sexual morality is not a character trait pertinent to the charge of indecent liberties. 98 Wash.App. 817, 991 P.2d 657; accord State v. English, 150 Wash.App. 1051, 2009 WL 1763664, No. 37047-6-1I, at *6 (Wash. Ct. App. June 23, 2009) (unreported) (noting that Griswold and Woods hold that sexual morality is a pertinent character trait in sexual offense cases). This disagreement does not concern us because, as discussed above, the crux of the Jackson reasoning is on the reliability of reputation evidence about this trait. See 730 P.2d at 1364.


author: HAZOURI, J.

text:
    Drew GESTEWITZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3647.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2010.

      Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Drew G. Gestewitz was charged with and convicted of possession of a controlled substance (Xanax) and escape. We reverse both convictions because those charges arose from conduct that took place after the police unlawfully detained Ges-tewitz for the purpose of issuing him a trespass warning.

On the eve of the 2007 Super Bowl, Gestewitz attended Sharky’s Bar & Billiards in Sebastian, Florida. After an argument between Gestewitz and a bartender, the bartender called the police. Before the police arrived, Gestewitz had moved outside the bar and was standing by the bar’s front door.

Three police officers initially responded. The officers approached Gestewitz and asked him to move away from the front door. The bar manager then asked the police to issue Gestewitz a trespass warning so that he could not re-enter the bar. While one officer went inside to fill out a written trespass warning, the two other officers detained Gestewitz outside the bar and spoke with him about the incident. During this detention, Gestewitz’s friend who was to give him a ride home arrived. As she approached, Gestewitz asked if he could leave. The police told him he was not free to leave because they were detaining him until they processed his trespass warning.

Gestewitz then started putting his hands in his pockets. Although they did not notice a bulge in Gestewitz’s pockets, the officers asked Gestewitz if he had any weapons on him and ordered him to remove his hands from his pockets. Gestew-itz pulled his hands from his pockets and started voluntarily removing items from them.

At this time, one of the officers noticed a clear plastic baggie poking out of Gestew-itz’s right pocket. The officer asked Ges-tewitz what was in the baggie. Gestewitz said it was a Xanax bar. Because Xanax is a controlled substance and Gestewitz did not have a prescription for it, the police placed Gestewitz under arrest. A few moments later, Gestewitz, whom the police had not yet handcuffed, tried to flee. About thirty feet into the chase, he tripped and fell and the police took him into custody. The State thereafter charged him with possession of a controlled substance (Xanax) and escape.

Gestewitz filed a motion to suppress the Xanax discovered during his detention. The trial court denied this motion, at which time Gestewitz pleaded guilty to possession of Xanax and reserved his right to appeal the denial as a dispositive order. Gestewitz went to trial on the charge of escape, resulting in a conviction. We find the detention was illegal and that it resulted in Gestewitz’s arrest for possession of Xanax and escape. Therefore, we reverse Gestewitz’s convictions for possession and escape, and direct the State to discharge him.

Our standard of review on a motion to suppress includes deference to the trial court to determine the credibility of witnesses and the weight of the evidence. See Wasko v. State, 505 So.2d 1314, 1316 (Fla.1987) (“[A] reviewing court should not substitute its judgment for that of a trial court, but, rather, should defer to the trial court’s authority as a factfinder.”). Although we are required to accept the trial court’s determination of historical facts, “a defendant is entitled to a de novo review of whether the application of the historical facts to the law establishes an adequate basis for the trial court’s [determination],” i.e., whether the defendant’s Fourth Amendment rights have been violated. See Delorenzo v. State, 921 So.2d 873, 876 (Fla. 4th DCA 2006).

The sole basis for detaining Gestewitz was to give him a written warning stating that he could not re-enter the bar in question and, if he did re-enter, he would face arrest for trespass.

A detention for the purpose of issuing a trespass warning on behalf of a private owner — absent other circumstances giving rise to a reasonable suspicion of other criminal activity — is a consensual encounter. See Slydell v. State, 792 So.2d 667, 672-73 (Fla. 4th DCA 2001); see also Rodriguez v. State, 29 So.3d 310 (Fla. 2d DCA 2009) (“Accordingly, we conclude that a stop merely to issue a trespass warning is not a Terry stop, but rather a consensual encounter.” (footnote omitted)). This is because a police officer — under the trespass statute — may issue a trespass warning for unauthorized entrance into a structure, but does not have the legal authority to conduct an investigatory stop or arrest for trespass unless the owner or his agent first warned the potential trespasser. See § 810.08(1), Fla. Stat. (2006); S.N.J. v. State, 17 So.3d 1258, 1259 (Fla. 2d DCA 2009) (stating that Florida’s criminal trespass statute “requires that notice be given before a person can be guilty of trespassing on property,” and that individuals “c[an] be legally detained for trespassing only if they were first warned to leave the property”); see also Rodriguez, 29 So.3d at 310.

Section 810.08(3), Florida Statutes (2006), which defines a “person authorized” to issue a trespass warning, authorizes a law enforcement officer, on behalf of a property owner, to warn a particular individual that he or she may not re-enter the structure or conveyance and doing so would constitute the criminal offense of trespass. There is nothing in section 810.08(3) defining how an authorized person is to convey a trespass warning.

In the instant case, the law enforcement officers could have chosen to give Gestewitz a verbal trespass warning and allowed him to leave when his friend arrived. If Gestewitz voluntarily decided to stay at the scene in order to receive a written trespass warning, that would have also been sufficient. However, the officers had no statutory or other lawful authority permitting them to detain Gestewitz for the purpose of issuing him a trespass warning. This is because, at the time the officers detained Gestewitz for warning purposes, there was no reasonable suspicion that Gestewitz committed the crime of trespass, as a trespass warning is a prerequisite to that crime.

Given these circumstances, and the officers having no fear for officer safety or reasonable suspicion that Gestewitz had committed a crime or was about to commit a crime, the detention was unlawful. See State v. Barnes, 979 So.2d 991, 993 (Fla. 4th DCA 2008); see also Delorenzo, 921 So.2d at 878-79. Further compounding the illegality of the detention was one law enforcement officer’s order for Gestewitz to remove his hands from his pockets. See, e.g., Delorenzo, 921 So.2d at 876 (“Ordering an individual to take his hand out of his pocket ordinarily turns a consensual encounter into a stop.”).

Thus, the discovery of the Xanax bar was the product of an illegal detention, and the trial court should have granted the motion to suppress. It necessarily follows that because the discovery of the Xanax bar led to the arrest, which was unlawful, there could be no escape, as it stemmed from that unlawful arrest. Cf. State v. Frierson, 926 So.2d 1139, 1143-45 (Fla.2006) (providing that, absent circumstances purging the taint of an illegal stop, evidence found during an illegal stop is “fruit of the poisonous tree” stemming from the illegal stop and should be suppressed (citing Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). We, accordingly, reverse the convictions for possession of the controlled substance Xanax and escape, and order Gestewitz to be discharged.

Reversed.

FARMER and DAMOORGIAN, JJ., concur.

      . Section 810.08(1) states:
      Whoever, without being authorized, licensed, or invited, willfully enters or remains in any structure or conveyance, or, having been authorized, licensed, or invited, is warned by the owner or lessee of the premises, or by a person authorized by the owner or lessee, to depart and refuses to do so, commits the offense of trespass in a structure or conveyance.

      . Section 810.08(3), Florida Statutes (2006), states:
      As used in this section, the term "person authorized” means any owner or lessee, or his or her agent, or any law enforcement officer whose department has received written authorization from the owner or lessee, or his or her agent, to communicate an order to depart the property in the case of a threat to public safety or welfare.


author: PER CURIAM.

text:
    STATE v. Quincy BROWN.
    No. 01-KK-2113.
    Supreme Court of Louisiana.
    April 12, 2002.
   PER CURIAM.

The district court has informed this Court that relator entered a guilty plea to a reduced charge of manslaughter on January 28, 2002, thereby rendering the questions raised by relator in his writ application moot. We therefore withdraw our order of February 22, 2002, as improvidently issued.


text:
    STATE v. Quincy BROWN.
    No. 01-KK-2463.
    Supreme Court of Louisiana.
    April 12, 2002.
   PER CURIAM.

The district court has informed this Court that respondent entered a guilty plea to a reduced charge of manslaughter on January 28, 2002, thereby rendering the questions raised by the Orleans Parish District Attorney’s Office in its writ application moot. We therefore withdraw our order of February 22, 2002, as improvidently issued.


author:
PER CURIAM.
     KNOLL, J., WEIMER, J., KNOLL, Justice, WEIMER, J., GUIDRY, Justice,

text:
    In re Ramsey T. MARCELLO.
    No. 2010-OB-0528.
    Supreme Court of Louisiana.
    April 7, 2010.
    Order Denying Reconsideration April 28, 2010.
   JjON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

After reviewing the evidence and considering the law, we conclude petitioner, Ramsey T. Marcello, is eligible to be conditionally admitted to the practice of law in Louisiana, subject to the following conditions:

1. The term of this conditional admission shall be for one year from the date of admission.

2. During the period of this conditional admission, petitioner shall be monitored by the Lawyers Assistance Program (LAP).

3. Petitioner shall be responsible for ensuring that monthly reports of his progress and participation in LAP are forwarded to the Office of Disciplinary Counsel.

4. Within forty-five days prior to the expiration of the conditional admission, the Executive Director of LAP shall forward to the Office of Disciplinary Counsel (a) a final report of petitioner’s progress and participation in LAP, and (b) a recommendation regarding the need for petitioner’s continued participation in LAP.

5. Within thirty days prior to the expiration of the conditional admission, the Office of Disciplinary Counsel shall file a report in this court in which it shall recommend whether the conditional admission shall be allowed to terminate or shall be extended.

|26. Petitioner shall cooperate with LAP and the Office of Disciplinary Counsel, and shall comply with any and all requirements imposed upon him by LAP and the Office of Disciplinary Counsel.

Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

KNOLL and WEIMER, JJ„ dissent with reasons.

KNOLL, J.,

dissenting.

| iWith all due respect, I dissent from the majority imposing upon respondent a conditional admission to the practice of law, subject to a one-year period of monitoring by LAP. After submitting to substance abuse evaluation by two doctors who are professionals in the field of substance abuse, respondent was determined not to be an alcoholic and does not have a substance abuse problem. In my view, petitioner should be admitted to the practice of law without conditions. Conditional admission with a period of monitoring by LAP should be reserved for those who have been diagnosed with alcohol and/or drug problems.

WEIMER, J.,

dissenting in part.

|,I would conditionally admit the applicant, but would not require monitoring by the Lawyers Assistance Program because, according to the two doctors who evaluated him, there is no evidence the applicant has an alcohol or substance abuse dependence.

ON APPLICATION FOR RECONSIDERATION.

11 Reconsideration denied.

KNOLL, J., dissents for the reasons assigned on original consideration.

WEIMER, J., dissents with reasons.

GUIDRY, J., concurs with reasons.

KNOLL, Justice,

dissenting.

|,I dissent for the reasons assigned on original consideration.

WEIMER, J.,

dissenting.

|,I dissent for the reasons recited in my previous dissent in part.

GUIDRY, Justice,

concurs with reasons.

|,Pursuant to the clear and unambiguous language of our April 7, 2010 judgment, petitioner is required to “comply with any and all requirements imposed upon him” by the Lawyers Assistance Program.

       Chief Justice Kimball not participating in the opinion.


text:
    STATE of Louisiana v. Raymond POLK.
    No. 2010-KK-0936.
    Supreme Court of Louisiana.
    May 19, 2010.
   ORDER

Writ granted. The ruling of the trial court is reversed for the reasons stated by Judge Tobias in the Fourth Circuit Court of Appeal.

The stay previously issued in this matter is lifted.

/s/ Jeffrey P. Victory

Justice, Supreme Court of Louisiana


text:
    STATE of Louisiana v. Edward ALLEN.
    No. 2010-KK-1134.
    Supreme Court of Louisiana.
    May 19, 2010.
   PER CURIAM.

We find this case does not present exceptional circumstances justifying deviation from the general rule that jointly indicted defendants should be tried jointly. See La.C.Cr.P. art. 704.

REVERSED AND REMANDED.

JOHNSON and WEIMER, JJ., to deny.

      . Kimball, C.J., did not participate in the deliberation of this opinion.


author: /s/ Jeannette T. Knoll Justice

text:
    STATE of Louisiana v. William Earl DeGRATE.
    No. 2010-KD-1115.
    Supreme Court of Louisiana.
    May 19, 2010.
   ORDER

IT IS HEREBY ORDERED this writ is transferred to the Louisiana Court of Appeal, Second Circuit, for that court to consider applicant’s writ of review. The Louisiana Court of Appeal, Second Circuit, should consider this matter expeditiously, as applicant seeks emergency consideration.

/s/ Jeannette T. Knoll

Justice


text:
    In re Connie M. EASTERLY a/k/a Connie M. Eversberg.
    No. 2010-B-1145.
    Supreme Court of Louisiana.
    May 20, 2010.
   ORDER

Considering the Joint Petition for Interim Suspension filed by respondent, Connie M. Easterly a/k/a Connie M. Eversberg, and the Office of Disciplinary Counsel,

IT IS ORDERED that Connie M. Easterly a/k/a Connie M. Eversberg, Louisiana Bar Roll number 26278, be and she hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

/s/John L. Weimer

Justice, Supreme Court of Louisiana