text:
    Frantz YVANS-RICHARD and Dr. Guylaine I. Richard, his spouse, Appellants, v. CAPEX PROPERTIES MIDPOINT, LLC, a Florida limited liability corporation, Appellee.
    No. 4D09-2765.
    District Court of Appeal of Florida, Fourth District.
    Feb. 3, 2010.
    Regine Monestime of The Monestime Firm, P.A., North Miami Beach, for appellants.
    James D. Ryan of Ryan <& Ryan Attorneys, P.A., North Palm Beach, for appel-lee.
   PER CURIAM.

The court has reviewed the initial brief and the record filed in this case. No preliminary basis for reversal has been demonstrated. Therefore, we summarily affirm. See Fla. R.App. P. 9.315(a).

GROSS, C.J., FARMER and TAYLOR, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert D. WALLACE, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-6005.
    District Court of Appeal of Florida, First District.
    Feb. 5, 2010.
    Matt Shirk, Public Defender, and Richard B. Gordon, Assistant Public Defender, Jacksonville, for Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the December 19, 2008, judgment and sentence in Duval County Circuit Court case number 16-2008-CF-002975-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

WEBSTER, PADOVANO, and ROWE, JJ., concur.


author: VILLANTI, Judge.

text:
    Jeffery Lenard GREEN a/k/a Jeffrey L. Green, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4326.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 2010.

      Matthew P. Farmer of Farmer & Fitzgerald, Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

Jeffrey Green appeals his convictions and sentences for one count of first-degree felony murder, one count of armed burglary of a dwelling, and one count of armed robbery. We reverse and remand for a new trial because the trial court erred in denying Green’s motions for mistrial predicated on the prosecutor’s improper comments concerning Green’s exercise of his right to remain silent.

Background Facts

Robert Cameron was shot and killed by a masked gunman who entered Cameron’s second-floor condominium through a balcony door. Through investigation, the police developed three men as possible suspeets, Kelly Washington, Antonio Neal, and Desmond Davis, each of whom had been to Cameron’s condominium to socialize in the weeks before the shooting. During post-Mimnda statements to police, Washington, Neal, and Davis implicated Henry Jones and Jeffrey Green in the shooting.

According to the testimony presented at trial, Washington, Neal, and Davis knew that Cameron kept large quantities of marijuana at his condominium, and they decided to rob him of the marijuana and the cash associated with sales of that marijuana. The three then contacted Jones about obtaining a firearm. At Jones’s suggestion, the four men went to Green’s house and obtained two handguns. Green joined the group, and the five men drove to a spot near Cameron’s condominium. Washington waited in the car while Neal, Davis, Jones, and Green got out and jumped the wall surrounding the condominium complex. According to Davis, he and Neal boosted Jones and Green onto the second-floor balcony of Cameron’s condominium. According to Jones, Green shot Cameron when he initially refused to give them the marijuana and the cash. After being shot, Cameron got the marijuana and cash from his closet and gave it to Green. Both Jones and Green then fled the apartment. They rejoined Neal and Davis, ran back to the car where Washington was waiting, and returned to Green’s home. According to Davis, at Green’s house the five men divided the marijuana and the cash between them. They also allegedly each signed a piece of paper saying that none of them would tell anyone what had happened, although no one other than Davis testified to this and no such paper was ever found or introduced at trial.

According to Davis and Jones, while the five men were dividing the marijuana and cash Green admitted that he had fought with someone in the condominium and the gun went off and that person was shot. However, Neal testified that he had no idea that any shooting had occurred until the next day when Jones told him that Green had shot someone. Neal also testified that Green told him that Jones was the one who fired the shot.

Post-arrest, Davis confessed his involvement in the offenses to the police. In exchange for his cooperation, he was offered a plea agreement that included a ten-year cap on prison time. During Davis’s trial testimony, he was impeached with various lies that he told in his sworn statements to the police. His testimony was also impeached by the fact that the police had told him the substance of his codefendants’ statements before the police recorded his statement. Thus, the evidence showed that when Davis’s statement was recorded, he knew what the other alleged participants had told the police about the events.

Jones turned himself in to police after he learned that there was a warrant out for his arrest. In exchange for his cooperation and confession, he was offered a plea agreement that included a sentence of fifteen years in prison followed by three years’ probation. During his trial testimony, Jones was impeached with various lies that he told in his sworn statements to the police. Like Davis, Jones was also impeached by evidence that the police had told him the substance of his codefendants’ statements before the police recorded his statement.

Neal initially told the police that he was not with the others on the night in question. However, he later confessed to some involvement after the police told him that both Jones and Green had pointed to him as the triggerman. In exchange for his cooperation and confession, Neal was offered a plea agreement with a sentence of ten years in prison followed by three years’ probation. Like Davis and Jones, Neal’s confession was impeached by the fact that the police told him the substance of his codefendants’ statements before they recorded his statement.

After Green turned himself in to the police, he asserted his right to remain silent and chose not to give a statement to the police. Despite Green’s silence, the police told at least one codefendant— Neal — that Green had given a statement that detailed everyone’s involvement in the robbery and shooting.

Several days after the shooting, the police obtained a search warrant for Green’s residence based on the statements of his codefendants. At Green’s home, the police recovered three .380 firearms similar to the one allegedly used to shoot Cameron. However, forensic testing revealed that none of the three firearms fired the bullet that killed Cameron, and no other shots were fired during the burglary. Moreover, despite statements from Neal and Davis that Green’s Dodge Charger was the vehicle the men used to get to and from Cameron’s condominium on the night of the shooting, the police never obtained a search warrant for the Charger and they never conducted any forensic testing on the Charger. The State found no fingerprints at Cameron’s condominium connecting Green to the robbery, and the two other men present in Cameron’s condominium at the time of the robbery could not identify either of the intruders. Thus, the State had no physical evidence or eyewitness identification tying Green to the crimes. Instead, the only evidence tying him to any of the events was the testimony of Neal, Davis, and Jones. Washington did not testify at trial.

Green’s theory of defense was that he was not involved in these crimes at all and that his codefendants had accused him of the shooting to cover up their own involvement. He pointed out that each codefen-dant had initially lied to the police about their respective involvement and had changed their stories only after being told what the other codefendants had allegedly told police. He also argued that the code-fendants each had a motive to minimize their own involvement due to their favorable plea agreements. Despite these arguments, the jury convicted Green as charged, and the court sentenced him to three concurrent terms of life in prison.

In this appeal, Green raises three issues for review. We reject without discussion Green’s argument that the trial court abused its discretion when it allowed Neal and Jones to testify even though they had refused to give depositions prior to trial. However, we agree with Green that he was entitled to a mistrial based on the prosecutor’s improper comments and arguments concerning the exercise of his right to remain silent. In addition, because we are remanding for a new trial, we also explain why the trial court abused its discretion in admitting evidence of the firearms found at Green’s residence that were unrelated to the charged crimes.

Post-Arrest Silence

Green first argues that he was entitled to a mistrial because the prosecutor improperly elicited evidence concerning Green’s decision not to make a statement to police and then improperly relied on this evidence during closing arguments. During the redirect examination of Detective Kent, the prosecutor asked whether Green had given any post-arrest statements to law enforcement. Kent replied that Green had “refused.” Despite this obvious comment on Green’s exercise of his right to remain silent, the trial court denied Green’s motion for mistrial. Later, during closing arguments, the prosecutor listed each of Green’s codefendants, noted that each had confessed post-arrest, and then argued, ‘When Jeffrey Green was given an opportunity to talk to the police, he refused.” Green again moved for a mistrial, and the trial court again denied the motion. These rulings constituted an abuse of discretion.

The due process clause of the Florida Constitution, article I, section 9, guards against prosecutorial comments on a defendant’s post-arrest silence. See State v. Hoggins, 718 So.2d 761, 770 (Fla.1998). The standard for determining what constitutes a comment on post-arrest silence is fairly liberal. “If the comment is fairly susceptible of being construed by the jury as a comment on the defendant’s exercise of his or her right to remain silent, it violates the defendant’s right to silence.” Id. at 769; see also State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). Thus, “Evidence or argument that is fairly susceptible of being deemed a comment on the right of silence should be excluded.” Giorgetti v. State, 821 So.2d 417, 422 (Fla. 4th DCA 2002); see also State v. Smith, 573 So.2d 306, 317 (Fla.1990) (“[Cjourts must prohibit all evidence or argument that is fairly susceptible of being interpreted by the jury as a comment on the right of silence.”); Dixon v. State, 627 So.2d 19, 20 (Fla. 2d DCA 1993) (holding that comments that are “fairly susceptible” to being interpreted as comments on the defendant’s silence are generally reversible error).

Here, Detective Kent’s response that Green “refused” to give a statement was more than “fairly susceptible” of being interpreted as a comment on Green’s right to remain silent. Instead, it directly raised and negatively commented on Green’s exercise of that constitutional right. As such, the response was an improper comment that should have been excluded from both evidence and argument.

In defense of the trial court’s ruling otherwise, the State argues that Green “opened the door” to this comment and argument when he elicited testimony from Neal that the police told Neal before Neal confessed that Green had given a statement identifying Neal as the triggerman. Neal testified that he later learned that Green had not made a statement to the police. The State argued that since Green himself had elicited the testimony that he had not given a statement to the officers, he had “opened the door” to the State using this information against Green.

“[T]he concept of ‘opening the door’ allows the admission of otherwise inadmissible testimony to ‘qualify, explain, or limit’ testimony or evidence previously admitted.” Ramirez v. State, 789 So.2d 568, 579 (Fla.1999) (quoting Tompkins v. State, 502 So.2d 415, 419 (Fla.1986)). Applying this concept in the context of post-arrest silence, if a defendant raises the issue of his own post-arrest silence, the State may respond. See United States v. Robinson, 485 U.S. 25, 32, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988); Ricardo v. State, 756 So.2d 215, 216 (Fla. 4th DCA 2000); Wood v. State, 552 So.2d 235, 236 (Fla. 4th DCA 1989). However, the extent and content of the State’s response is limited to a fair comment on the evidence of silence raised by the defendant. See Ricardo, 756 So.2d at 216; Wood, 552 So.2d at 236. Any comments that exceed the extent and content of the evidence elicited by the defendant remain objectionable.

Here, the testimony presented by Green did not “open the door” to the comments elicited by the State. As to the response elicited from Detective Kent, nothing about her testimony that Green “refused” to give a statement either qualified, explained, or limited Neal’s prior testimony that the police told him that Green had made a statement implicating him when, in fact, Green had made no such statement. In addition, Green’s questions to both Neal and Detective Kent were narrowly tailored to elicit only testimony that would establish that the officers “set up” the codefendants against each other. Green then used this evidence to establish a possible motive for Neal to falsely accuse Green of being the triggerman. Given these narrowly tailored questions, the subsequent testimony from Detective Kent that Green “refused” to give a statement was not a fair comment on the evidence elicited by Green concerning his own post-arrest silence, and it should have been excluded.

Moreover, the State’s argument in closing that Green was the only one of the codefendants to not make a statement to the police was an egregiously improper comment on Green’s exercise of his right to remain silent. “Where the prosecutor on his own initiative asks the jury to draw an adverse inference from a defendant’s silence, ... the privilege against compulsory self-incrimination is violated.” Robinson, 485 U.S. at 32, 108 S.Ct. 864. Here, nothing about the limited evidence elicited during Green’s cross-examination of Neal opened the door to the expansive argument made by the State. The State’s argument was a blatant appeal to the jury to convict Green because he was the only one of the codefendants who did not confess. This argument went far beyond the extent and content of the testimony elicited by Green, and Green’s motion for mistrial based on this improper argument should have been granted.

We also reject the State’s argument that any error arising from these comments was harmless. An error is harmless only when “the state, as the beneficiary of the error, [can] prove beyond a reasonable doubt that the error complained of did not contribute to the verdict.” DiGuilio, 491 So.2d at 1138. As a general proposition, “[w]hen the evidence against the defendant is not clearly conclusive, comment on postarrest silence is not harmless.” Hoggins, 718 So.2d at 772; see also DiGuilio, 491 So.2d at 1138. Here, the State had no physical evidence placing Green at the scene of the crime, and none of the surviving robbery victims identified Green as a participant in the events. The only evidence linking Green to the crimes was the testimony of his codefendants, each of whom had made a sweetheart deal with the State in exchange for their testimony and each of whom had a strong interest in fingering someone else as the shooter. Because the evidence of Green’s guilt was far from conclusive, the error in permitting these comments was not harmless. Accordingly, we reverse and remand for a new trial.

Firearms Evidence

Because we are remanding for a new trial, we also address Green’s argument that the trial court erred by admitting evidence of three firearms that were found in Green’s home two days after the shooting, none of which were tied to the charged offenses in any way. We agree with Green that the admission of this evidence was improper.

The three firearms at issue were found in Green’s home when a search warrant was executed two days after the shooting. Two of the firearms were found in Green’s roommate’s bedroom. The other firearm was found in Green’s bedroom. All three were .380 semiautomatic handguns, and Cameron was shot with a .380 firearm. However, the State’s forensic testing determined that none of the firearms seized from Green’s home fired the fatal shot. Thus, the State was unable to connect any of the three firearms to the charged offenses.

Despite this inability to connect the firearms to the offenses, the State nevertheless offered the firearms into evidence at trial. The State argued that the firearms were relevant to corroborate the codefen-dants’ testimony that Green had firearms at his home and that they went to Green’s house specifically to obtain firearms to use in the burglary. Green argued that even if the evidence of these firearms had some relevance, which Green did not concede, any relevance was significantly outweighed by the danger of unfair prejudice. The trial court overruled Green’s objections and admitted the firearms into evidence.

As to the two firearms found in Green’s roommate’s bedroom, the trial court erred by admitting any evidence of these guns because they were completely irrelevant. Relevant evidence is evidence that tends to prove or disprove a material fact. See § 90.401, Fla. Stat. (2007); see also Zabner v. Howard Johnson’s Inc. of Fla., 227 So.2d 543, 545 (Fla. 4th DCA 1969) (holding that relevant evidence has “a tendency to establish a fact in controversy or to render a proposition in issue more or less probable”). Here, not only were these two firearms not connected in any way to the charged offenses, they were also not connected to Green. The fact that Green’s roommate possessed two .380 semiautomatic firearms that were not connected to the charged offenses did not tend to prove or disprove any material fact in controversy and thus had absolutely no relevance whatsoever. Therefore, those firearms should not have been admitted into evidence under any theory.

As to the firearm found in Green’s bedroom, the existence of such a firearm in Green’s bedroom would tend to render the proposition that the codefendants went to his house to get a firearm more probable. Thus, the existence of that firearm was marginally relevant to Green’s participation in the charged crimes.

However, even relevant evidence should be excluded when the relevance is substantially outweighed by the danger of confusion or unfair prejudice. See § 90.403. In conducting this weighing process, the trial court should “consider the need for the evidence, the tendency of the evidence to suggest to the jury an improper basis for resolving the matter, the chain of inference necessary to establish the material fact, and the effectiveness of a limiting instruction.” Denmark v. State, 927 So.2d 1079, 1081-82 (Fla. 2d DCA 2006) (citing Steverson v. State, 695 So.2d 687, 689 (Fla.1997)). Evidence that requires an extended chain of inferences to be relevant or that suggests an improper basis for the jury’s verdict should be excluded.

For example, in Blair v. State, 667 So.2d 834, 836 (Fla. 4th DCA 1996), the defendant was charged with burglary of an occupied structure, grand theft, dealing in stolen property, and conspiracy to commit burglary based on a burglary at a residence that was being renovated. During discovery, the State obtained a briefcase that was owned by the defendant and which contained wires, screwdrivers, magnets, and telephone wire endings. Id. at 840. The State sought to admit the briefcase and its contents at trial, arguing that the items were “probative based on the inference that [the] defendant probably planned to use the electronic equipment in the burglary[.]” Id. However, the State could not establish any nexus between the briefcase and its contents and the actual burglary. Id.

In finding that the prejudicial effect of this evidence outweighed its probative value, the Blair court noted that “[tjhere is nothing unlawful about keeping electronic equipment in a briefcase, and there was no direct connection between the electronic equipment and the crimes with which the defendant was charged. Therefore, the evidence and testimony supported an improper implication that [the] defendant was a career burglar and thus, must have committed these crimes.” Id.

Here, as in Blair, any probative value of the firearm found in Green’s bedroom was outweighed by the danger of unfair prejudice. As with the briefcase in Blair, any possible probative value of Green’s legal possession of a firearm that was unconnected to the charged crimes was outweighed by the possibility that the jurors would improperly rely on this evidence to determine that since Green owned this .380 handgun, he must have owned another one that he used to commit the charged crimes. Because such an inference is not properly drawn from the evidence, the admission of the firearm was unduly prejudicial, and any evidence concerning this firearm should be excluded on retrial.

Reversed and remanded for further proceedings.

WALLACE and LaROSE, JJ., Concur.

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


author: WARNER, J.

text:
    Victor BRANCACCIO, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2664.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 2010.

      Marcia J. Silvers of Marcia J. Silvers, P.A., Miami, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant, Victor Braneaccio, challenges the trial court’s denial of his motion for postconviction relief based upon newly discovered evidence. While the trial court found that evidence of the effects of the drug Zoloft could be considered newly discovered in that the drug warnings issued by the Food and Drug Administration came well after the trial in this action, it concluded that the evidence would not, as a matter of law, establish an involuntary intoxication defense and would not produce an acquittal on retrial. It thus denied the motion. We affirm.

To succeed on a motion for post-conviction relief on the grounds of newly discovered evidence, the defendant must prove two factors. First, to qualify as newly discovered evidence, “the asserted facts ‘must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence.’ ” Jones v. State, 591 So.2d 911, 916 (Fla.1991), (quoting Hallman v. State, 371 So.2d 482, 485 (Fla.1979)). Second, “the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.” Jones, 591 So.2d at 915 (emphasis in original).

The standard of review following denial of a rule 3.850 claim after an eviden-tiary hearing requires deference to the trial court’s factual findings. See Jeantilus v. State, 944 So.2d 500, 501 (Fla. 4th DCA 2006). The legal conclusions of the trial court are reviewed de novo. Demps v. State, 761 So.2d 302, 306 (Fla.2000). Absent an abuse of discretion, a trial court’s decision on a motion claiming newly discovered evidence will not be reversed. Mills v. State, 786 So.2d 547, 549 (Fla.2001).

An accused may be completely relieved of criminal responsibility if, because of involuntary intoxication, he was temporarily rendered legally insane at the time he committed the offense. Brancaccio v. State, 698 So.2d 597, 599 (Fla. 4th DCA 1997) (“Brancaccio I ”) (quoting Phillip E. Hassman, Annotation, When Intoxication Deemed Involuntary so as to Constitute a Defense to Criminal Charge, 73 A.L.R.3d 195 (1976)). Stated differently, the definition of insanity has been expanded to include situations in which a person could not distinguish right from wrong as a result of the involuntarily-induced intoxicated state. Miller v. State, 805 So.2d 885, 887 (Fla. 2d DCA 2001).

In order to establish an involuntary intoxication defense, a defendant must first present sufficient evidence that an intoxicated condition was brought about by the introduction into the defendant’s body “of any substance which he does not know and has no reason to know has a tendency to cause an intoxicated or drugged condition.” Brancaccio, 698 So.2d at 600 n. 4. The defendant would then have the burden to prove that this involuntary intoxication rendered him unable to understand what he was doing and to understand the consequences of his actions, or if he did understand, that he was unable to know that his actions were wrong. See generally Hall v. State, 568 So.2d 882 (Fla.1990). “If a defendant introduces evidence sufficient to present a reasonable doubt about sanity, the presumption of sanity vanishes and the state must prove the accused’s sanity beyond a reasonable doubt.” Id. at 885 n. 6.

In Brancaccio I, we reversed Brancac-cio’s murder conviction for a new trial after ruling that he was entitled to a jury instruction on involuntary intoxication where he presented evidence of intoxication resulting from his use of Zoloft pursuant to a prescription. On retrial, several expert witnesses testified for the defense that at the time of the incident, Brancaccio was suffering from negative side effects of Zoloft. These defense experts opined that Brancaccio was involuntarily intoxicated by Zoloft and was unable to form the intent to commit the offense, noting that his symptoms of anger, aggression and hyperactivity were made worse by his use of Zoloft. By contrast, the state presented several experts of its own who testified that Brancaccio was not involuntarily intoxicated because of his use of Zoloft. At the conclusion of the retrial, Brancaccio was again convicted as charged. On direct appeal, this court affirmed his convictions. See Brancaccio v. State, 773 So.2d 582 (Fla. 4th DCA 2000).

In 2006, Brancaccio filed a motion for postconviction relief based on newly discovered evidence consisting of new advisories, warnings and publications of the FDA and other drug regulatory agencies concerning the possible side effects of Zoloft in minors, including aggressive and impulsive behavior. The trial court conducted an extensive evidentiary hearing and analyzed the evidence, comparing it to the evidence of guilt. The court concluded that the evidence of the drug’s side effects and the FDA warnings constituted newly discovered evidence. However, as to the second factor, the court concluded that the evidence would not have resulted in an acquittal on retrial, because the other evidence in the case showed that an involuntary intoxication defense would not have succeeded.

Other evidence showed that Brancaccio knew that his actions in striking his victim and then moving her behind a berm to continue the beating until she was dead were wrong, negating any involuntary intoxication defense. For example, the state presented evidence that Brancaccio told witnesses that he continued his initial assault on the victim so that she would not remember him, and that he killed her because he feared she would go to the police. Additionally, his subsequent actions showed that he was trying to avoid the consequences of his actions, also providing evidence of his knowledge that he knew his actions were wrong and thus could distinguish right from wrong. Concluding from the evidence that Brancaccio had engaged in a two-day systematic course of conduct to kill the victim and then cover up the evidence, the trial court denied relief.

As there was substantial, competent evidence to support this view, the trial court did not err in rejecting the claim that the newly discovered evidence regarding the warnings of the side effects of Zoloft would have probably resulted in an acquittal on retrial. We thus affirm the trial court’s thorough ruling.

POLEN and FARMER, JJ., concur.


text:
    Michael MADDEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1889.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 2010.
    Michael Madden, Polk City, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Based upon the state’s concession of error, we reverse the portion of the sentencing order which improperly credited Madden with 578 days rather than 584 days for time served. We affirm as to all other issues raised on appeal.

Affirmed in part, reversed in part, and remanded for correction of the sentence.

GROSS, C.J., WARNER and LEVINE, JJ., concur.


text:
    Andre WARNER, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1821.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 2010.
    Andre Warner, Chipley, pro se.
    No appearance required for appellee.
   PER CURIAM.

The order summarily denying appellant’s motion for post-conviction relief is affirmed. See Anthony v. State, 980 So.2d 610 (Fla. 4th DCA 2008), review denied, 6 So.3d 607 (Fla.2009).

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


text:
    STATE of Florida, Appellant, v. Donald TADDUNI, Appellee.
    No. 4D09-87.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 2010.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Pickle, 22 So.3d 865 (Fla. 4th DCA 2009).

FARMER, HAZOURI and DAMOORGIAN, JJ., concur.


text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. HOLLYWOOD INJURY REHAB CENTER, a/a/o David Prince, Respondent.
    No. 4D09-1305.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 2010.

      Michael J. Neimand of the Office of the General Counsel, United Automobile Insurance Company Trial Division, Miami, for petitioner.
    Marlene S. Reiss of Marlene S. Reiss, P.A., Miami, for respondent.
   PER CURIAM.

Through this second tier petition for writ of certiorari, United Automobile Insurance Company seeks review of a circuit court’s decision affirming the county court’s summary judgment in favor of Hollywood Injury & Rehab Center. The circuit court agreed with the county court that the peer review report United Auto furnished to defend the summary judgment motion was not valid because it did not state that the doctor either physically examined the insured or that his opinion was based on an independent medical examination as required by section 627.736(7)(a), Florida Statutes. We grant the writ and quash the circuit court order.

Our review is limited to whether United Auto was afforded due process and whether the circuit court in its appellate capacity departed from the essential requirements of law. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003). The failure to apply the correct law is a departure from the essential requirements of law. See Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995).

We find a departure based on the law as explained by this court in the recent decision of Cent. Magnetic Imaging Open MRI of Plantation, Ltd. v. State Farm Fire & Cas. Ins. Co., 22 So.3d 782 (Fla. 4th DCA 2009). As this court noted, a “valid report” as anticipated by section 627.736(7)(a), Florida Statutes, does not require an insurer to order an IME before denying a claim for PIP benefits. In Cent. Magnetic Imaging, we noted that our case law before the 2001 amendment at issue clearly permitted “‘peer review reports’ and squarely held that an insurer was not required to obtain an IME before denying a PIP claim.” Id. at 784 (citing Nationwide Mut. Fire Ins. Co. v. Se. Diagnostics, Inc., 766 So.2d 229 (Fla. 4th DCA 2000)).

By erroneously affirming the county court’s summary judgment in favor of Hollywood Injury Rehab Center, the circuit court departed from the essential requirements of law. We grant the petition for writ of certiorari, quash the circuit court’s order, and remand for proceedings consistent with this opinion.

TAYLOR, HAZOURI and CIKLIN, JJ„ concur.

      . As in Central Magnetic, we note that other districts have held that the valid report requirement of section 627.736(7)(a) does not apply at all in a case such as this. See State Farm Mut. Auto. Ins. Co. v. Rhodes & Anderson, D.C., P.A., 18 So.3d 1059 (Fla. 2d DCA 2008) (holding that section 627.736(7)(a), applies only to a withdrawal of "treatment authorization” not a mere denial of payment of a single PIP charge); accord Partners in Health Chiropractic v. United Auto. Ins. Co., 21 So.3d 858 (Fla. 3d DCA 2009); United Auto. Ins. Co. v. Eduardo J. Garrido, D.C., P.A., 22 So.3d 120 (Fla. 3d DCA 2009); United Auto. Ins. Co. v. Santa Fe Med. Ctr., 21 So.3d 60 (Fla. 3d DCA 2009). That issue was not raised in this case until the filing of the reply brief. Matters argued for the first time therein will not be considered by the reviewing court. See McAllister v. Breakers Seville Ass’n, 981 So.2d 566, 575 (Fla. 4th DCA 2008).


author: MAY, J.

text:
    Demetrius WOODY, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2017.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 2010.
    Richard C. Klugh, Jr., of Law Offices of Richard C. Klugh, Jr., Miami, and Abe A. Bailey of Law Offices of Abe A. Bailey, P.A., Miami, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals an order denying his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. Among the issues raised, he alleged ineffective assistance of counsel based upon an improper Miranda warning and his counsel’s failure to object to an incomplete jury instruction. We affirm the court’s order on the Miranda issue. See Anthony v. State, 980 So.2d 610, 612 (Fla. 4th DCA 2008) (stating that trial counsel was not ineffective by failing to raise the Miranda issue prior to the Roberts decision). However, we reverse and remand the case on the jury instruction issue for either the attachment of relevant portions of the record that conclusively refute the defendant’s claims or an evidentiary hearing. We find no merit in the other issues raised.

The defendant alleges his trial counsel was ineffective when he failed “to object, contest, and preserve for intelligent appellate review, the trial court’s erroneous incomplete jury instruction on manslaughter.” The defendant was charged with murder in the second degree with a firearm. During the charge conference, defense counsel requested instructions on manslaughter including justifiable and excusable homicide. According to the record before us, the trial court instructed the jury as follows:

The Court: If you decide that, a main accusation is not proven beyond a reasonable doubt, you need next to decide if the defendant was guilty of the lesser included crime. The lesser included crime [of] Murder in the Second Degree with a firearm is Manslaughter. Before you can find the defendant guilty of manslaughter the state must prove the following elements beyond a reasonable doubt:
1. Ezra Buckner is dead.
2. The death was caused by Demetrius Woody. A) Intentionally Caused the death of Ezra Buckner, or B) The death was caused by the culpable negligence of Demetrius Lamar Woody. However, the defendant cannot be guilty of manslaughter if the defendant was justified or excusable homicide.

The defendant claims trial counsel was ineffective in failing to object when the trial court omitted the definitions of justifiable and excusable homicide from the instruction. He argues that had the proper instruction been given, the jury could have found him not guilty based on his claim of self-defense. Here, the trial court summarily denied the ineffective assistance of counsel claim because the jury instruction issue could have been raised on direct appeal.

As a general rule, where manslaughter appears on the verdict form, the jury must be instructed as to the definitions of justifiable and excusable homicide because manslaughter is a residual offense, which can be fully defined only by exclusion of the properly explained defenses of excusable and justifiable homicide. Avila v. State, 745 So.2d 983, 984 (Fla. 4th DCA 1999). “The only exception ... is where defense counsel affirmatively agreed to or requested the incomplete instruction.” State v. Lucas, 645 So.2d 425, 427 (Fla.1994) (citing Armstrong v. State, 579 So.2d 734 (Fla.1991)).

Although the record before us reveals that the definitions were requested, it does not reflect whether the trial court gave the full instruction including the definitions of excusable and justifiable homicide or whether defense counsel objected to or agreed to the modified instruction. The trial court summarily denied this claim. Such a resolution is proper only where the claims are either facially invalid or conclusively refuted by the record. Willacy v. State, 967 So.2d 131, 138 (Fla.2007).

This court has previously reversed a summary denial and ordered an evidentia-ry hearing on a Rule 3.850 motion where the trial court had, allegedly due to trial counsel’s mistake, failed to instruct on excusable homicide as part of the manslaughter instruction. See Platt v. State, 697 So.2d 989 (Fla. 4th DCA 1997). For the reasons explained in Platt, we reverse and remand the summary denial for attachment of the record conclusively refuting the defendant’s claim or for an evidentiary hearing on the issue.

Affirmed in part; Reversed in part and Remanded.

GROSS, C.J., and LEVINE, J., concur.

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

      . Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004), review denied, State v. West, 892 So.2d 1014 (Fla.2005).

      .The State claims the defendant has couched a trial court error under the guise of an ineffective assistance of counsel claim and it was properly denied. We disagree. The defendant clearly alleged ineffective assistance of counsel in a failure to object to the incomplete instruction.

      . In fact, in a prior petition before this court, the defendant alleged that counsel "agreed to omit the excusable or justifiable instruction only after jurors were read the erroneous instruction,” which affirmatively waived the error. That allegation is not made in the current appeal.


author: ROTHENBERG, J.

text:
    STATE FARM FLORIDA INSURANCE CO., as subrogee of Jose R. Masvidal, Appellant, v. Aleli LOO, Appellee.
    No. 3D09-917.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 2010.

      Richard A. Warren, Miami, for appellant.
    Shook, Hardy & Bacon and Alexandra Bach Lagos and Daniel B. Rogers, Miami, for appellee.
    Before RAMIREZ, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

State Farm Florida Insurance Co., as subrogee of Jose R. Masvidal, appeals from a final summary judgment entered in favor of Aleli Loo. We reverse.

I.Factual and Procedural Background

State Farm issued a rental dwelling insurance policy to Masvidal (“the Landlord”), insuring property he leased to Loo (“the Tenant”). During the term of the lease, a fire occurred at the leased premises, and State Farm paid the Landlord for the loss. State Farm subsequently filed a subrogation action against the Tenant to recover the amounts paid to Masvidal, alleging that the Tenant’s negligence caused the fire.

The Tenant filed an amended answer denying that State Farm had a right of subrogation against her. Relying on Sutton v. Jondahl, 532 P.2d 478 (Okla.Civ.App.1975), the Tenant subsequently moved for summary judgment, arguing that a tenant is an implied co-insured under a landlord’s insurance policy, and therefore, State Farm cannot seek subrogation against her because an insurer cannot seek subrogation against its own insured or co-insured. Agreeing with the Tenant, the trial court entered final summary judgment in favor of the Tenant. State Farm’s appeal follows.

II.Standard of Review

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Thus, we review the trial court’s entry of final summary judgment de novo. Id.; Sheikh v. Coregis Ins. Co., 943 So.2d 242, 243 (Fla. 3d DCA 2006).

III.Issue

The issue presented on appeal is whether a landlord’s insurer may bring a subro-gation action against the landlord’s tenant to recover amounts the insurer paid under the insurance policy for damage to the leased premises that the insurer attributes to the tenant’s negligence.

IV.Analysis

Generally, when an insurer pays the claim of its insured, the insurer stands in the shoes of its insured, and the insurer may bring a subrogation action against the tortfeasor to recover the amounts paid under the insurance policy. See Fireman’s Fund Ins. Co. v. Rojas, 409 So.2d 1166, 1167 (Fla. 3d DCA 1982). The insurer, however, may not maintain a subrogation action against its own insured even if the insured’s negligence caused the loss. See Bulone v. United Servs. Auto. Ass’n, 660 So.2d 399, 404 (Fla. 2d DCA 1995); Ray v. Earl, 277 So.2d 73, 76 (Fla. 2d DCA 1973); Smith v. Ryan, 142 So.2d 139, 141 (Fla. 2d DCA 1962).

Here, the Tenant urges this Court to adopt the holding in Sutton — a tenant is an implied co-insured under her landlord’s insurance policy unless there is an express agreement between the landlord and tenant to the contrary — and therefore, to affirm the order under review because, as a co-insured, State Farm cannot bring a sub-rogation action against her. In response, State Farm contends that this Court addressed the issue under review in Tout v. Hartford Accident & Indemnity Co., 390 So.2d 155 (Fla. 3d DCA 1980) (affirming final judgment against tenant and in favor of landlord’s insurance carrier, finding that the terms of the parties’ lease did not express an intent that the landlord would exculpate the tenants for damage they negligently caused), and based on Tout, the order under review must be reversed.

In determining whether a landlord’s insurer may bring a subrogation action against a negligent tenant, courts have typically adopted one of three views: (1) the approach set forth in Sutton; (2) an approach that is contrary to Sutton, which is known as the “anti-Sutton approach”; and (3) the approach outlined in Tout, which is known as the “case-by-case approach.” The first view we will address is the view presented in Sutton. In Sutton, John Jondahl leased a home from Earl and Lavon Sutton. During the term of the lease, Mr. Jondahl’s ten-year-old son started a fire while experimenting with his chemistry set. The Suttons’ insurer, Central Mutual Insurance Company, paid the loss and thereafter filed a subrogation action against Mr. Jondahl and his son, seeking to recover the monies it paid to its insureds, the Suttons. Following a jury trial, the trial court entered final judgment in favor of Central Mutual and solely against Mr. Jondahl. Mr. Jondahl appealed the final judgment, arguing that Central Mutual could not bring a subrogation action against him because, as the tenant of its policyholders, he is an implied co-insured under the policy. The Court of Appeals of Oklahoma agreed with Mr. Jon-dahl’s argument, stating as follows:

Under the facts and circumstances in this record the subrogation should not be available to the insurance carrier because the law considers the tenant as a co-insured of the landlord absent an express agreement between them to the contrary, comparable to the permissive-user feature of automobile insurance. This principle is derived from a recognition of a relational reality, namely, that both landlord and tenant have an insurable interest in the rented premises-the former owns the fee and the latter has a possessory interest. Here the landlords (Suttons) purchased the fire insurance from Central Mutual Insurance Company to protect such interests in the property against loss from fire. This is not uncommon. And as a matter of sound business practice the premium paid had to be considered in establishing the rent rate on the rental unit. Such premium was chargeable against the rent as an overhead or operating expense. And of course it follows then that the tenant actually paid the premium as part of the monthly rental.
The landlords of course could have held out for an agreement that the tenant would furnish fire insurance on the premises. But they did not. They elected to themselves purchase the coverage. To suggest the fire insurance does not extend to the insurable interest of an occupying tenant is to ignore the realities of urban apartment and single-family dwelling renting.

Id. at 482 (citations omitted). The view taken in Sutton is commonly referred to as the “Sutton doctrine” or the “anti-subrogation rule,” and has been adopted in several jurisdictions.

The second view, which is contrary to the principle in Sutton, allows for a presumption in favor of subrogation and permits an insurer to bring a subrogation against the tenant absent an express or implied agreement to the contrary. This view is commonly referred to as the “anti-Sutton approach.”

Lastly, is the third view, which this Court applied in Tout and subsequent courts have referred to as the “case-by-case analysis,” where there is no presumption in favor or against subrogation. Instead, the “lease as a whole” is examined “in order to ascertain the intent of the parties ‘as to who should bear the risk of loss for damage to the leased premises caused by the tenant’s negligence.’ ” Am. Family, 757 N.W.2d at 592 (quoting TriPar Invs., 680 N.W.2d at 197); see also Rausch, 882 A.2d at 806-07 (“The third principle is an application of basic contract law to the landlord-tenant relationship. Just as a lease may negate a tenant’s common law tort liability, it may, independently of tort liability, contractually impose liability on the tenant for damage to the leased premises resulting from the tenant’s negligent act or omission, either by a specific lease provision to that effect or by a covenant on the part of the tenant to return the property, save for ordinary wear and tear, in the same condition as the tenant received it.”); Dattel Family Ltd. P’ship v. Wintz, 250 S.W.3d 883, 890 (Tenn.App.2007) (explaining that under the “case-by-case approach, there is no presumption regarding whether the tenant is an implied co-insured under the landlord’s insurance policy. Rather, the court looks at the lease as a whole, along with any other relevant evidence, to ascertain whether it was reasonably anticipated by the landlord and the tenant that the tenant would be liable to the landlord’s insurance carrier, via subrogation, for any damages resulting from the tenant’s negligence”). As State Farm correctly argues, the principle underlying the case-by-case analysis was applied in Tout, and therefore, applicable in this district.

In Tout, William and Jean Tout entered into a contract to purchase Michael S. Greenwald’s house, which permitted the Touts to lease the premises from Mr. Greenwald prior to closing. In addition, the contract contained the following “exculpatory clause”: “Seller assumes risk of loss from fire or otherwise until closing. ...” During the rental period, a fire broke out at the premises, and Green-wald’s insurer, Hartford Accident & Indemnity Company, paid the loss to Green-wald. Thereafter, alleging that the Touts’ negligence caused the fire, Hartford filed a subrogation action against the Touts, seeking to recover the amount paid to Green-wald. In defending the subrogation action, the Touts raised the exculpatory clause as an affirmative defense, which the trial court eventually struck. Following a jury trial, the trial court entered a final judgment in favor of Hartford. On appeal, the Touts argued, in part, that the trial court erred by granting Hartford’s motion to strike the affirmative defense. This Court disagreed, finding that the “exculpatory clause” did not defeat Hartford’s sub-rogation rights because “a limitation of liability for one’s negligent acts cannot be inferred unless such intention is expressed in unequivocal terms.” Tout, 390 So.2d at 156; see also Conch Cove Inc. v. Hartford Accident & Indem. Co., 473 So.2d 768, 771 (Fla. 4th DCA 1985) (holding that clauses in the lease between a marina and boat owner, requiring the boat owner to carry insurance on the boat and agreeing to hold the marina harmless and releasing the marina “from any and all liability for loss or damage” to the boat due to fire, was “inadequate to demonstrate intent on the part of the parties to exculpate [the marina] from liability for its own negligence or to shift such liability to an insurer”).

Based on this Court’s decision in Tout, we conclude that the trial court applied the incorrect legal standard when ruling on the Tenant’s motion for summary judgment. Thus, we will examine the terms of the parties’ lease to determine if, as a matter of law, the parties intended that the Tenant would not be held liable for her negligent acts that damaged the leased premises. See Thompson v. Douds, 852 So.2d 299, 305 (Fla. 2d DCA 2003) (explaining that when the trial court enters final summary judgment based on its application of an incorrect legal standard, an appellate court will reverse and remand to the trial court for a new hearing to “reconsider its decision in light of the proper legal standard”; however, the appellate court will simply reverse the entry of final summary judgment if it is clear from the record that the movant cannot prevail, as a matter of law, upon the application of the correct legal standard).

In determining the intent of the parties, we examine the lease as a whole, with the primary focus on paragraphs 9 and 10. Paragraph 9 of the lease provides, in part, as follows: “Damage to Premises. If the demised premises ... shall be partially damaged by fire ... not due to Lessee’s negligence ..., the premises shall be promptly repaired by Lessor and there shall be an abatement of rent corresponding with the time during which ... the leased premises may have been untenanta-ble” Further, paragraph 10 provides: “Dangerous Materials. Lessee shall not keep or have on the leased premises any article or thing of a dangerous, inflammable, or explosive character that might unreasonably increase the danger of fire on the leased premises or that might be considered hazardous or extra hazardous by any responsible insurance company.”

A close reading of the provisions contained in paragraphs 9 and 10 reflect that they do not provide that the Landlord may not hold the Tenant liable for her negligence or that the Landlord has agreed to assume the responsibility to purchase a rental dwelling insurance policy for the Tenant’s benefit. Rather, paragraph 9 merely indicates that if the property is damaged by fire that is not caused by the Tenant’s negligence, the Landlord will repair the damages and the Tenant will not be required to pay rent while the premises are untenantable. Moreover, paragraph 10 does nothing more than prohibit the Tenant from keeping “dangerous, inflammable, or explosive” materials on the leased premises. Further, there is no provision in the parties’ lease that (1) exculpates the Tenant from liability for her own negligence; (2) requires the Landlord to maintain insurance for the benefit of the Tenant; or (3) shifts any loss incurred as a result of the Tenant’s negligence to the Landlord.

Based on our review of the lease as a whole, we conclude that, as a matter of law, State Farm may proceed with its sub-rogation action against the Tenant because the parties did not in “unequivocal terms” intend to limit the Tenant’s liability for her negligent acts. Tout, 390 So.2d at 156; Cf U.S. Fire Ins. Co. v. Norlin Indus., Inc., 428 So.2d 325, 326 (Fla. 1st DCA 1983) (affirming dismissal of a subrogation action filed by landlord’s insurer against allegedly negligent tenant where lease required the landlord to maintain fire insurance on the leased premises, concluding that “the obvious intent of the parties was to shift the risk of damages caused by fire to an insurer”); Smith v. Ryan, 142 So.2d 139, 141 (Fla. 2d DCA 1962) (holding that “[i]t is never presumed that a contract is intended to protect one against his own negligence, and hence, unless it clearly so states, the courts hold that such was not the intention”; affirming final summary judgment in subrogation action entered in favor of allegedly negligent contractor where contract that contractor and property owner entered into “clearly requires the owner to carry fire insurance naming the contractor as one of the insured, thereby bringing the contractor within the provisions of law that an insurer cannot maintain a subrogation suit against its own insured”).

Although not dispositive, we briefly address the Tenant’s contention that the First District Court of Appeal in Continental Insurance Co. v. Kennerson, 661 So.2d 325 (Fla. 1st DCA 1995), applied the Sutton doctrine when it held that the landlord’s insurer, Continental Insurance Co., could not exercise any right of subrogation against the negligent tenant. The Kenner-son court stated that its holding was “clearly in keeping with the modern trend of authority,” id. at 330, which it identified as the approach set forth in Sutton. In reality, however, the opinion reflects that the First District’s holding was actually based on the application of the case-by-case analysis because the court considered several provisions in the parties’ lease to determine their intent as to who should bear the risk of loss for damage to the leased premises caused by the tenant’s negligence. 661 So.2d at 327-28. In concluding that the trial court correctly entered final summary judgment in favor of the tenant, thereby concluding that Continental Insurance did not have a right of subrogation against the tenant, the First District relied on lease provisions requiring the landlord to bear the expense of repairing any fire damage and to procure fire insurance on the property, “the cost of which the tenant has agreed to bear and has in fact borne.” Id. at 330.

V. Conclusion

Because the trial court applied the incorrect legal standard — the Sutton doctrine— when ruling on the Tenant’s motion for summary judgment, and it is clear from the record before this Court that the Tenant cannot prevail upon the application of the correct legal standard — the case-by-case analysis — we reverse the order under review.

Reversed.

      . State Farm also filed suit against Jorge Cava, a co-tenant under the lease, but Cava failed to answer the complaint, and a default was entered against him.

      . The lawsuit was initially filed in the Suttons' names. However, Central Mutual was required to substitute itself as the plaintiff as it was the real party in interest.

      . The trial court also relied on Nebraska Supreme Court's decision in Tri-Par Investments, L.L.C. v. Sousa, 268 Neb. 119, 680 N.W.2d 190 (2004), which adopted the Sutton doctrine. In addition to Nebraska and Oklahoma, several other jurisdictions have adopted the anti-subrogation rule. See DiLullo v. Joseph, 259 Conn. 847, 792 A.2d 819 (2002); Lexington Ins. Co. v. Raboin, 712 A.2d 1011 (Del.Super.Ct.1998); N. River Ins. Co. v. Snyder, 804 A.2d 399 (Me.2002); Peterson v. Silva, 428 Mass. 751, 704 N.E.2d 1163 (1999); United Fire & Cas. Co. v. Bruggeman, 505 N.W.2d 87 (Minn.Ct.App.1993); Safeco Ins. Co. v. Capri, 101 Nev. 429, 705 P.2d 659 (1985); Cmty. Credit Union of New Rockford, N.D. v. Homelvig, 487 N.W.2d 602 (N.D.1992); GNS P'ship v. Fullmer, 873 P.2d 1157 (Utah Ct.App.1994); Cascade Trailer Court v. Beeson, 50 Wash.App. 678, 749 P.2d 761 (1988).

      . The anti-subrogation approach has been adopted by several jurisdictions. See U.S. Fid. & Guar. Co. v. Let's Frame It, Inc., 759 P.2d 819 (Colo.Ct.App.1988); Fed. Ins. Co. v. Paulk, 173 Ga.App. 266, 325 S.E.2d 886 (1985); Neubauer v. Hostetter, 485 N.W.2d 87 (Iowa 1992); N.H. Ins. Co. v. Hewins, 6 Kan.App.2d 259, 627 P.2d 1159 (1981); Am. Guar. & Liab. Ins. Co. v. Little, 328 So.2d 706 (La.Ct.App.1976); Rausch v. Allstate Ins. Co., 388 Md. 690, 882 A.2d 801 (2005); Paramount Ins. Co. v. Parker, 236 Miss. 872, 112 So.2d 560 (1959); Zoppi v. Traurig, 251 N.J.Super. 283, 598 A.2d 19 (1990); Galante v. Hathaway Bakeries, Inc., 6 A.D.2d 142, 176 N.Y.S.2d 87 (N.Y.App.Div.1958); Winkler v. Appalachian Amusement Co., 238 N.C. 589, 79 S.E.2d 185 (1953); Wichita City Lines, Inc. v. Puckett, 156 Tex. 456, 295 S.W.2d 894 (1956).

      .The case-by-case analysis has been followed by several states. See 56 Assocs. ex rel. Paolino v. Frieband, 89 F.Supp.2d 189 (D.R.I.2000); Gen. Accident Fire & Life Assurance Corp. v. Traders Furniture Co., 1 Ariz.App. 203, 401 P.2d 157 (1965); Fire Ins. Exch. v. Hammond, 83 Cal.App.4th 313, 99 Cal.Rptr.2d 596 (2000); Bannock Bldg. Co. v. Sahlberg, 126 Idaho 545, 887 P.2d 1052 (1994); Dix Mut. Ins. Co. v. LaFramboise, 149 Ill.2d 314, 173 Ill.Dec. 648, 597 N.E.2d 622 (1992); United Farm Bureau Mut. Ins. Co. v. Owen, 660 N.E.2d 616 (Ind.Ct.App.1996); Britton v. Wooten, 817 S.W.2d 443 (Ky.1991); Rausch v. Allstate Ins. Co., 388 Md. 690, 882 A.2d 801 (2005); Agra-By-Products, Inc. v. Agway, Inc., 347 N.W.2d 142 (N.D.1984); U.S. Fire Ins. Co. v. Phil-Mar Corp., 166 Ohio St. 85, 139 N.E.2d 330 (1956); Koch v. Spann, 193 Or.App. 608, 92 P.3d 146 (2004); Remy v. Michael D’s Carpet Outlets, 391 Pa.Super. 436, 571 A.2d 446 (1990); Am. Family Mut. Ins. Co. v. Auto-Owners Ins. Co., 757 N.W.2d 584 (S.D.2008); Union Mut. Fire Ins. Co. v. Joerg, 175 Vt. 196, 824 A.2d 586 (2003); Monterey Corp. v. Hart, 216 Va. 843, 224 S.E.2d 142 (1976).


author: RAMIREZ, C.J.

text:
    Jesus RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-182.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 2010.
    Rehearing Denied March 9, 2010.

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN, and SUAREZ, JJ.
   RAMIREZ, C.J.

Jesus Rodriguez appeals his final judgment of conviction and sentence for first-degree murder, kidnapping, burglary of a dwelling and aggravated stalking. Finding neither fundamental error nor an abuse of discretion, we affirm.

I. Facts

The State charged Rodriguez with the murder of his wife. The grand jury indicted him on (1) first-degree murder, (2) kidnapping, (3) burglary with an assault or battery, and (4) aggravated stalking. The evidence against him on the murder charge was mostly circumstantial, as his wife’s body was never found.

The charges stem from a domestic dispute dating back to October of 2001, when Rodriguez’s wife Isabel petitioned for divorce. She obtained a restraining order against Rodriguez after she received a phone call from him threatening to kill her. Rodriguez was served on November 1, 2001. At trial, two witnesses, including the officer who served the injunction, testified that Rodriguez became very angry when he was served with the order and that he made threatening remarks to Isabel.

On November 13, 2001, Isabel became missing. Judith Almeida, who was a tenant on Isabel’s property, testified that she received a call from Rodriguez asking her if she would be going to work the next morning and that she saw someone hiding behind a car on the property the next morning while taking out the trash. Rodriguez’s adult daughter, Rochelle, testified that she and Rodriguez had planned to take her car to his farm on the morning of November 13 for him to work on it. At Rodriguez’s farm, Rochelle noticed a fire burning on the property and that Rodriguez had scratches on his nose and was pressure cleaning his Lincoln Continental, which had been seen at Isabel’s house earlier in the day. Rodriguez’s girlfriend also testified that he did not have scratches on his body before he left the house that day, but did have scratches on his back and nose when he returned in the evening.

On November 15, investigators transported Rodriguez’s Lincoln Continental to the medical examiner’s office for processing. The homicide detective that transported the vehicle testified that immediately upon opening the trunk, he noticed the smell of a decomposed body and the smell of a cleaning agent. The detective also testified that the entire trunk was soaked and was wet from condensation. On November 26, 2001, an investigating officer went to Isabel’s home to serve a search warrant and encountered Rodriguez on the property. Rodriguez invited the officer inside the home to show him the property, and told the officer that he need not worry about the restraining order because Isabel would never be coming back. Rodriguez was arrested on April 11, 2002. While the detective was preparing paperwork on the arrest, Rodriguez spontaneously stated that the police were mistaken about his motive for killing Isabel, namely that it was about money and not jealousy.

Rodriguez testified on his own behalf at trial, admitting that he was at Isabel’s home on November 13 in violation of the restraining order. The jury found him guilty as charged on all four counts, and he was sentenced to life in prison for the murder and kidnapping counts, thirty years for the burglary count, and five years for the aggravated stalking count.

II. Law

On appeal, Rodriguez first argues that the prosecutor committed fundamental error in closing argument when she impermissibly shifted the burden of proof from the State to the defense by arguing that there was nothing in the jury instructions that required the State to have a body, or proof of how the victim died. The prosecutor stated during closing:

There is nothing that says any of that. All it says in the jury instruction is, we have to prove that she is dead and we have to prove that he did it. Do any of you believe, if any of you believe, beyond a reasonable doubt that she is not dead, well, you know that I invite you go ahead and acquit him. If you believe beyond a reasonable doubt that she is not dead acquit him. But nobody can look at this evidence as a whole, you’re all smart people you all have common sense that’s why you’re on this jury. You’re not like him. He has no common sense.

There was no objection to this statement, but Rodriguez argues that this constituted fundamental error. The Florida Supreme Court has stated:

[Fjailing to raise a contemporaneous objection when improper closing argument comments are made waives any claim concerning such comments for appellate review. The sole exception to the general rule is where the unobjected-to comments rise to the level of fundamental error, which has been defined as 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.”

Mosley v. State, — So.3d —, 2009 WL 2045387 (Fla.2009) (quoting Simpson v. State, 3 So.3d 1135, 1146 (Fla.2009)).

We recognize that the prosecutor misstated the law. In Gore v. State, 719 So.2d 1197 (Fla.1998), the Florida Supreme Court recognized that it is error for a prosecutor to attempt to shift the burden of proof from the State to the defense. See also Northard v. State, 675 So.2d 652, 653 (Fla. 4th DCA 1996); Clewis v. State, 605 So.2d 974, 975 (Fla. 3d DCA 1992). What she should have said was that “if you do not believe beyond a reasonable doubt that the victim is dead, go ahead and acquit him.” There is no suggestion that the prosecution intentionally misstated that law. Furthermore, the misstatement could have been readily corrected with a curative instruction had the defense objected. For example, in Heinz v. State, 615 So.2d 238, 289 (Fla. 3d DCA 1993), we affirmed a conviction after the prosecutor made an improper burden shifting argument where the defense objected and which the trial court immediately sustained with a cautionary instruction. Id.

Nevertheless, Rodriguez argues that the misstatement improperly shifted the burden of proof regarding an essential element of the crime and affected the fairness of the trial, thus constituting fundamental error. We disagree.

Rodriguez relies heavily on Murray v. State, 937 So.2d 277 (Fla. 4th DCA 2006) to argue that the error here was fundamental. In Murray, however, the Fourth District Court of Appeal dealt with a judge that gave improper jury instructions that the defense had to prove self-defense beyond a reasonable doubt. Id. at 280. There is no improper jury instruction here. Furthermore, the misstatement of the law here occurred only once, during closing argument, and evidently went unnoticed until after Rodriguez was convicted and the transcript was examined.

Given that the prosecution did not intentionally misstate the law, we view the improper remark in context. The misstatement was preceded by the prosecution stating that “we have to prove that she is dead ...” In her initial closing argument, the prosecutor argued that “there’s not a doubt in the world that Isabel Rodriguez is dead,” apparently a higher burden than “reasonable doubt.” Later she states that “[tjhere is no reasonable doubt that Isabel Rodriguez is dead.” In her rebuttal argument, after misstating her burden, she states that she does not have to prove how she died, “I just have to prove that she’s dead.” Later still, she admits that the defendant “doesn’t have to prove anything to you, that burden is mine.” She then goes over the jury instructions and states: “[bjefore you can find the defendant guilty of first degree premeditated murder [sic] State must prove the following three elements beyond a reasonable doubt. Number one, that the victim is dead. Generally we do have a body. You don’t have a body here. The State would submit to you that we have proved beyond a reasonable doubt that Isabel Rodriguez is dead.... ” Two pages later in the transcript, the prosecutor repeats that the State must prove beyond a reasonable doubt that the victim is dead. Five pages later, she states: “[a]nd the one thing that is proven beyond a reasonable doubt, and that is a doubt that you can attach a reason to, which has been proven beyond every reasonable doubt, that is he killed her.”

During the jury instructions, because they contained lesser-included offenses, the judge charged the jury five different times that the State had to prove beyond a reasonable doubt that Isabel Rodriguez is dead. This was in addition to the standard instruction on reasonable doubt and burden of proof.

Thus, we have a jury that is repeatedly told that the State had the burden to prove that Isabel Rodriguez was dead and one instance where the prosecution inadvertently misstated the State’s burden of proof. Consequently, we do not believe that the error here, to quote from Mosley, supra, “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.”

We decline to address the remaining issue raised on appeal as we conclude that it is meritless and/or harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).

III. Conclusion

We affirm Rodriguez’s judgment of conviction and sentence.

      . It should be noted that in Gore, the defendant objected to the prosecutor’s improper arguments.


text:
    Willie McGRIFF, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2650.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 2010.
    Willie McGriff, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., and CORTINAS, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Florida Rule of Appellate Procedure 9.315(a).


text:
    Wallace Anthony WOODS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2911.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 2010.
    Wallace Anthony Woods, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, GERSTEN, and LAGOA, JJ.
   PER CURIAM.

We treat the defendant’s petition for writ of certiorari as an appeal of an order denying relief under Florida Rule of Criminal Procedure 3.800(a) and affirm.

Affirmed.


text:
    Theodore D. COLEMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-315.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 2010.

      Alan M. Medof, North Miami, for appellant.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, GERSTEN, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See State v. McBride, 848 So.2d 287 (Fla.2003).


text:
    Diego JIMENEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-316.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 2010.
    Diego Jimenez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, GERSTEN, and LAGOA, JJ.
   PER CURIAM.

Diego Jimenez (“the defendant”) appeals from a trial court order prohibiting him from filing further pro se postconviction motions. Although the defendant has filed three postconviction relief motions, each addressed a different, legally cognizable issue. Thus, we find that the trial court abused its discretion in determining that the defendant abused his right to pro se access by filing frivolous motions. See State v. Spencer, 751 So.2d 47 (Fla.1999); Mims v. State, 994 So.2d 1233 (Fla. 3d DCA 2008).

Accordingly, we reverse the order prohibiting the defendant from filing further pro se motions from his conviction and sentence.

Reversed.


text:
    The STATE of Florida, Petitioner, v. Grady NELSON, Respondent.
    No. 3D09-3352.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 2010.
    Katherine Fernandez Rundle, State Attorney, and Joel D. Rosenblatt, Assistant State Attorney, for petitioner.
    Carlos J. Martinez, Public Defender and David S. Markus, Special Assistant Public Defender, for respondent.
    Before GERSTEN, SHEPHERD, and SUAREZ, JJ.
   PER CURIAM.

The State of Florida petitions for a writ of certiorari to quash an order taxing costs against the State Attorney’s Office as a sanction for a discovery violation in a criminal prosecution. The trial court does not have inherent authority to assess costs against the State Attorney’s Office in criminal cases. State v. Shelton, 584 So.2d 1118 (Fla. 5th DCA 1991); State v. Harwood, 488 So.2d 901 (Fla. 5th DCA 1986). Accordingly, we grant certiorari, and quash the trial court order assessing costs against the State Attorney’s Office in this cause.

Petition granted; order quashed.


text:
    Donterius SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2226.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 2010.
    Donterius Smith, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Moses v. State, 13 So.3d 490 (Fla. 4th DCA 2009).

FARMER, HAZOURI and DAMOORGIAN, JJ., concur.


text:
    Carmen RAMOS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1086.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 2010.
    Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and CORTIÑAS, and SALTER, JJ.
   PER CURIAM.

Carmen Ramos appeals from a conviction of grand theft of currency valued at $100,000 or more. We affirm because the issue complained of was not properly preserved for appellate review and in no way results in fundamental error. See Smith v. State, 990 So.2d 1162, 1164 (Fla. 3d DCA 2008).

Affirmed.


text:
    The STATE of Florida, Appellant, v. Arthur N. WRIGHT, Appellee.
    No. 3D08-1533.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 2010.
    Bill McCollum, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Amy Weber, Assistant Public Defender, for appellee.
    Before COPE, CORTIÑAS, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Fernandez v. State, 669 So.2d 1134, 1134-35 (Fla. 3d DCA 1996); Tucker v. State, 679 So.2d 1261, 1262 (Fla. 2d DCA 1996); Lee v. State, 566 So.2d 526, 527 (Fla. 4th DCA 1990).


text:
    Ronald SEARCY, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D08-2425, 3D08-3178.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 2010.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
    Before GERSTEN, SHEPHERD, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Searcy v. State, 971 So.2d 1008 (Fla. 3d DCA 2008).


text:
    Frantz SINCERE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1024.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 2010.

      Frantz Sincere, in proper person.
    Bill McCollum, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See State v. McBride, 848 So.2d 287 (Fla.2003).


author: SILBERMAN, Judge.

text:
    George JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2956.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 2010.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    George Johnson, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano and Joseph H. Lee, Assistant Attorneys General, Tampa, for Appellee.
   SILBERMAN, Judge.

George Johnson seeks review of the judgment and sentence the trial court entered after a jury found him guilty of aggravated battery with a deadly weapon. We reverse because the court erred in sustaining the State’s use of a peremptory strike during voir dire in the face of a defense objection on the basis of gender.

During voir dire, the defense objected when the State struck juror 9, who was the last male on the panel and would have taken the last seat on the jury. Defense counsel noted that the jury would consist entirely of females if the court upheld the strike and demanded a gender-neutral reason for the strike. The court asked the State to provide a gender-neutral reason for the strike, but the State merely replied that it had wanted jurors 1 and 7, who were both male, but the defense had struck them. The State also explained that it “didn’t get a good feel for” juror 9. The court asked if Johnson would accept either juror 1 or 7 on the jury, but Johnson declined.

The court opined that, because both Johnson and the victim were male, it did not see any advantage to the State from seating an all-female jury. The court went over the strikes by each side and found that jurors 1 and 7 were both male and were struck by the defense. Jurors 6 and 9 were male and were struck by the State. Jurors 2 and 14 were female and were struck by the State. Jurors 3, 8, 12, and 13 were female and were struck by the defense. Based on that analysis, the court sustained the State’s peremptory strike of juror 9. The court explained, “So just by looking at the math ... I really don’t think anyone is striking anyone because of gender.”

The court then identified the next two individuals available to serve as the final juror and the alternate, and the parties accepted them without further discussion and without using any strikes. The court asked Johnson if he was satisfied with the jury selection process and the jury, and Johnson replied that he was. The court then recessed for lunch.

Immediately upon reconvening, the court sua sponte revisited the defense objection to the peremptory strike of juror 9, noting the State’s lack of specificity as to why it wanted to strike that juror. The court again asked the State for a gender-neutral reason for the strike. The State attempted to explain, stating, “Your Hon- or, last minute I just thought — there was nothing about him I didn’t like. I had a bad feeling, so I struck him.” After further discussion with the prosecutor, the court ruled that the State’s reason was gender-neutral and genuine, and it upheld the strike based upon the fact that the State had struck an equal number of male and female jurors. This was error.

Gender is a valid basis for an objection to the exercise of a peremptory strike. Welch v. State, 992 So.2d 206, 211 (Fla.2008). When a party objects to the use of a peremptory strike on gender grounds, the party must allege that the juror belongs to a specific gender group and request a gender-neutral reason to support the strike. If the objecting party complies with these requirements, the court must ask the striking party to explain the reason for the strike. Id. at 211-12. At this point, the burden shifts to the striking party to establish a gender-neutral explanation for the strike. Id. at 212. The court should sustain the strike if the explanation given by the striking party is gender-neutral and the court believes that it is not a pretext. The court should focus on the genuineness of the explanation, not its reasonableness. Melbourne v. State, 679 So.2d 759, 764 (Fla.1996).

In this case, Johnson met his burden of alleging that juror 9 belonged to a specific gender group and requesting a gender-neutral reason to support the strike. The trial court asked the State for a gender-neutral explanation, and the State responded that it “didn’t get a good feel for” the juror. The State later elaborated, stating that it “had a bad feeling” about the juror. Although the trial court appears to have been troubled by the State’s explanation, it sustained the strike based on the composition of the jury that had been seated.

A party’s unsupported “bad feeling” about a juror is not a sufficient explanation to rebut the assertion that the strike was motivated by gender. See Daniel v. State, 697 So.2d 959, 961 (Fla. 2d DCA 1997); Ruger v. State, 941 So.2d 1182, 1184 (Fla. 4th DCA 2006); Bullock v. State, 670 So.2d 1171, 1172 (Fla. 3d DCA 1996). Furthermore, it is improper for the court to consider the overall make-up of the jurors that have been seated in determining the sufficiency of a gender-neutral reason for a peremptory strike. Welch, 992 So.2d at 212. Indeed, “a gender neutral justification cannot be inferred from the composition of the panel.” Id. at 211. Accordingly, the trial court erred in sustaining the State’s use of the peremptory strike on juror 9 in this case.

The State argues that Johnson failed to preserve this issue for review. Based on the sequence of events here, we reject that argument. Generally, a party does not preserve an objection to the use of a peremptory strike if he affirmatively accepts the jury “immediately prior to its being sworn without reservation of his earlier-made objection.” Joiner v. State, 618 So.2d 174, 176 (Fla.1993). Acceptance of the jury without renewal of the objection leads to a “reasonable assumption” that the earlier objection is abandoned. Id. In that circumstance, “It is reasonable to conclude that events occurring subsequent to [counsel’s] objection caused him to be satisfied with the jury about to be sworn.” Id.

Here, however, the record does not support the conclusion that Johnson abandoned his earlier objection based on subsequent events, and the court itself did not view Johnson as having abandoned his objection. After the court initially overruled the objection, the jury panel was completed. Following the lunch recess and before either party spoke, the court revisited Johnson’s objection and asked for further explanation only from the State. The court accepted the State’s explanation and sustained the peremptory strike, again overruling Johnson’s objection.

The purpose of the requirement that an error be preserved is to put the trial judge on notice that error may have been committed and to give the judge an opportunity to correct the error. Harrell v. State, 894 So.2d 935, 940 (Fla.2005). In this case, that purpose was fulfilled. When the court reconsidered Johnson’s objection after lunch, there was no need for Johnson to renew his objection. The court itself raised the issue, heard argument by the State, and overruled Johnson’s objection. It is clear that the court understood, reconsidered, and rejected Johnson’s objection immediately prior to swearing in the jury. These circumstances lead us to conclude that the issue was preserved for review. See Gootee v. Clevinger, 778 So.2d 1005, 1009 (Fla. 5th DCA 2000). A further objection after the court again overruled Johnson’s objection “ ‘would have been an obviously futile gesture.’ ” Sparks v. Allstate Constr., Inc., 16 So.3d 161, 164 (Fla. 3d DCA 2009) (quoting Webb v. Priest, 413 So.2d 43, 46 (Fla. 3d DCA 1982)).

Because the State’s given reason in support of its use of a peremptory strike of juror 9 was insufficient, the trial court erred in sustaining the State’s use of the peremptory strike. Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

VILLANTI and LaROSE, JJ., Concur.


author: KELLY, Judge. ALTENBERND, Judge,

text:
    AVATAR PROPERTIES, INC., a Florida corporation, and Solivita at Poinciana, Inc., a Florida corporation, Appellants, v. Fred and Linda GREETHAM, on behalf of themselves and all other similarly situated owners of property located in the Solivita at Poinciana Planned Residential Community, and Budget Roofing of Florida, Inc., a Florida corporation, Appellees.
    No. 2D09-525.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2010.

      John R. Hamilton of Foley & Lardner, LLP, Orlando, for Appellants.
    Stephen M. Cohen of Law Offices of Stephen M. Cohen, P.A., Palm Beach Gardens, and Mark S. Grotefeld of Grotefeld & Hoffman, LLP, Chicago, IL, for Appel-lees.
   KELLY, Judge.

The appellants, Avatar Properties, Inc., and Solivita at Poinciana, Inc., challenge a nonfinal order denying their motion to compel nonbinding arbitration. Because the trial court erred when it concluded that the arbitration agreement between Avatar and the appellees, Fred and Linda Greetham, was not valid, we reverse.

The Greethams own a residence in Soli-vita at Poinciana, a development in Polk County. According to the Greethams’ complaint, Avatar and Solivita were responsible for the design, development, and sale of the homes in Solivita, including their home. After the roof of their residence sustained damage as a result of hurricanes Charley and Frances, they sued Avatar and Solivita asserting a variety of claims based on allegations that the roof on their home was defectively designed and installed.

Avatar and Solivita responded to the Greethams’ complaint with a motion to compel arbitration. The arbitration provision at issue was contained in the home warranty that was expressly incorporated into the purchase and sale agreement the Greethams executed when they purchased the home. Although the warranty was not attached to the agreement, the agreement states that the warranty was available for examination at Solivita’s offices and, that upon request the warranty would be attached as an exhibit to the purchase and sale agreement. The Greethams initialed this paragraph.

At the hearing on the motion to compel arbitration, the Greethams argued that the arbitration agreement was not enforceable because the word “arbitration” was not mentioned in the purchase and sale agreement and because the warranty was not attached to the agreement when the Greet-hams signed it. The trial court denied the motion to compel arbitration on that basis, concluding that “there is not a valid knowing voluntary arbitration agreement.” In this appeal, Avatar and Solivita challenge the trial court’s conclusion. Because the existence of a valid agreement to arbitrate is a question of law, we review the trial court’s determination de novo. See Orkin Exterminating Co. v. Petsch, 872 So.2d 259 (Fla. 2d DCA 2004).

The purchase and sale agreement the Greethams signed unambiguously incorporated the home warranty by reference and made that document a part of the parties’ contract. “It is a generally accepted rule of contract law that, where a writing expressly refers to and sufficiently describes another document, that other document, or so much of it as is referred to, is to be interpreted as part of the writing.” OBS Co. v. Pace Constr. Corp., 558 So.2d 404, 406 (Fla.1990). “Incorporation by reference is a recognized method of making one document of any kind become a part of another separate document without actually copying it at length in the other.” State v. Wade, 544 So.2d 1028, 1030 (Fla. 2d DCA 1989). This court has routinely approved the enforcement of contractual provisions that were incorporated by reference into a contract that parties have signed, including arbitration provisions. See, e.g., Balboa Ins. Co. v. W.G. Mills, Inc., 403 So.2d 1149, 1150 (Fla. 2d DCA 1981) (recognizing that an arbitration clause in a prime contract between an owner and a general contractor applied to a lawsuit between the general contractor and one of its subcontractors because the subcontract incorporated part of the general contract by reference, including its arbitration provision). It is undisputed that the Greethams not only signed the purchase and sale agreement, but that they initialed the provision that incorporated the home warranty by reference. This provision advised them that they could review the warranty at Solivita’s offices and of their right to have a copy of it attached to the agreement. Any failure on their part to avail themselves of either opportunity is not a basis to find that no agreement existed. See Lopez v. Ernie Haire Ford, Inc., 974 So.2d 517 (Fla. 2d DCA 2008) (holding that a party to a written contract cannot defeat enforcement of its terms on the ground that they signed the contract without reading it).

The trial court erred in concluding that there was no agreement to arbitrate. The order denying Avatar and Solivita’s motion to compel arbitration is reversed, and we remand for further proceedings consistent with this opinion.

Reversed and remanded.

LaROSE, J., Concurs.

ALTENBERND, J., Concurs specially with opinion.

ALTENBERND, Judge,

Specially concurring.

Nothing in this special opinion is derived from the arguments of the parties. The issues presented by the parties probably justify the opinion of the court in this case. The nonbinding arbitration that we compel in this opinion is unlikely to be particularly helpful or harmful to these parties. Nevertheless, there are three aspects of this case that warrant comment.

First, I doubt that we have appeal jurisdiction in this proceeding. The arbitration agreement that Avatar Properties seeks to enforce requires nonbinding arbitration. The provisions in the arbitration code, chapter 682, Florida Statutes (2009), seem designed to apply to binding arbitration. This is not a case where the trial court can enter an order compelling arbitration pursuant to section 682.03 and then wait to see whether it will be called upon to confirm the binding decision pursuant to section 682.12. Instead, contractual provisions for nonbinding arbitration are similar to the nonbinding arbitration that the court itself can order pursuant to Florida Rule of Civil Procedure 1.820 and section 44.103, Florida Statutes (2009). An order sending a case to such nonbinding arbitration is not an appealable nonfinal order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). See Ebbitt v. Terminix Int’l Co., 792 So.2d 1275 (Fla. 4th DCA 2001). At best, I think we have jurisdiction to review this order by common law certiorari, and I doubt that Avatar Properties would be entitled to common law relief if the case had been argued properly.

Second, the parties do not appear to understand that the warranty agreement is actually a contract in the nature of insurance issued by a home warranty association regulated under sections 634.301 through 634.348, Florida Statutes (2003). The purchase and sale agreement provides for warranties “set forth in the Bonded Builders Home Warranty Association Specimen Booklet BB-W502 (‘Bonded Builders Warranty’), incorporated herein by reference.” I assume that form BB-W502 is a form that has been filed for approval with the state pursuant to section 634.312, but I am not certain and cannot find this form in the record.

The parties have given us a warranty on forms BB-W1110ST (06/06) and BB-W1110GP (06/06), which contain a nonbinding arbitration provision. I have no idea whether this arbitration provision is in BB-W502 as referenced in the contract.

Moreover, this nonbinding arbitration provision is an agreement to arbitrate any dispute “under any BBWG warranty.” BBWG is Bonded Builders Warranty Group. It is an association that is not a party to the purchase and sale agreement. Indeed, it is not a party to this appeal. I do not see how an incorporation by reference of an arbitration agreement between this association, which is essentially a specialty insurance company, and the Greet-hams creates any arbitration for disputes arising under the purchase and sale agreement with Avatar Properties. That said, this dispute looks like it probably is a claim under the warranty that should be pursued against BBWG rather than a claim for breach of the purchase and sale agreement.

Finally, in our record, paragraph 38 of the purchase and sale agreement, which deals with prevailing parties in a dispute under the agreement, and paragraph 39, which deals with an unknown topic, are either highlighted in a manner that makes them illegible or were stricken and not initialed by the parties when the contract was executed. If these provisions are important to our decision, we have not relied on them because they cannot be read in any of the copies that are in our record.

      . We conclude that we have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv), which permits appeals from nonfinal orders determining "the entitlement of a party to arbitration.” In Ebbitt v. Terminix Int’l Co., 792 So.2d 1275, 1276 (Fla. 4th DCA 2001), the court noted that the use of the word "entitlement” signaled that the rule was intended to authorize appeals from orders determining if a party had a "right to arbitration.” In that case, the trial court exercised its discretion to order nonbinding arbitration — it did not determine entitlement. In contrast, the order here determined Avatar’s contractual right, i.e. entitlement to arbitration.

      . The Greethams' complaint reflects that they apparently intend to seek class certification at some point, but they have not yet done so.


author: DAVIS, Judge.

text:
    STATE of Florida, Appellant, v. Mahmoud GAD, Appellee.
    No. 2D09-2039.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2010.

      Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellant.
    Jerry Berry and Michael Hopkins of Berry, Day & McFee, Naples, for Appel-lee.
   DAVIS, Judge.

The State challenges the trial court’s order granting Mahmoud Gad’s motion in limine and excluding as evidence three statements made by Mr. Gad. Because the trial court abused its discretion in granting the motion, we reverse.

The State charged Mr. Gad with attempted sexual battery and battery. The depositions taken in anticipation of trial reflect that, on the night in question, Mr. Gad and the victim had gone out for drinks, leaving Mr. Gad’s wife at home. The victim alleged that upon their return home but prior to their entering the residence, Mr. Gad pulled her over to the side of the home and attempted to rape her. Mr. Gad denies this account. However, when Mr. Gad and the victim entered the home, Mr. Gad’s wife noticed that he had removed his shirt, that his belt was undone, and that he was attempting to “hug” the victim. The victim was resisting Mr. Gad’s attempts, and his wife began yelling at the two of them. Mr. Gad then engaged his wife in an argument that resulted in his ordering the two women to leave the home. As the women drove away, Mr. Gad placed three calls to his wife’s cell phone. Because his wife did not answer the first two calls, Mr. Gad left two voice mail messages. His wife then answered the third call and had a brief conversation with Mr. Gad.

In anticipation of trial, Mr. Gad moved in limine to exclude any statements made during the three telephone calls. The transcripts of the two recorded messages were presented to the trial court, and Mr. Gad’s wife’s deposition testimony was considered as to the contents of the third call. In the first message, Mr. Gad asked that his wife call him back so that he could call the police. He apologized to her and again requested that she call back so he could call the police. In the second message, Mr. Gad stated:

Mahmoud here. (Inaudible). Call me. Everything will be fine (inaudible) talk about (inaudible) okay? Sorry for our cancel tonight, but I’m drunk, okay? Call back tomorrow, okay? Call me back so I can (inaudible) the [expletive] car. Maybe a check, okay?

Mr. Gad’s wife testified in her deposition that the substance of the actual conversation she had with him during the third telephone call was as follows: “I’m sorry. Tell [the victim] I’m sorry.”

Mr. Gad argued below that the apologies were not necessarily admissions of his wrongdoing but could just as easily be understood to be apologies for getting into the argument and asking the women to leave. He maintained that even if the jury accepted his explanation of what the conversations referred to, the jury would still be prejudiced against him because he argued with his wife and ordered her to leave their home. The potential prejudice, according to Mr. Gad, outweighed the probative value of the evidence. The trial court granted the motion to exclude the statements, and the State appeals from that order.

“Relevant evidence is evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat. (2008). In granting the motion in limine and excluding the statements, the trial court made a finding that the evidence was relevant. Neither party challenges that finding. Once it was established that the statements were relevant to the incident, however, the trial court should have weighed the probative value of the statements against the potential for unfair prejudice. “Under section 90.403, relevant evidence may be foreclosed where its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, [or] misleading the jury....” State v. Aylesworth, 666 So.2d 181, 182 (Fla. 2d DCA 1995).

In order for relevant, probative evidence to be deemed unfairly prejudicial, it must go beyond the inherent prejudice associated with any relevant evidence. “ ‘Relevant evidence is inherently prejudicial; however it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matters.’ ” State v. Blackwell, 787 So.2d 963, 965 (Fla. 1st DCA 2001) (quoting State v. Andres, 552 So.2d 1151, 1153 (Fla. 3d DCA 1989)). “ ‘Section 90.403 ... is directed at evidence which inflames the jury or appeals improperly to the jur[ors’] emotions.’ ” Steverson v. State, 695 So.2d 687, 689-90 (Fla.1997) (quoting C. Ehrhardt, Florida Evidence, § 403.1 (2d ed. 1984)).

Having found that the statements were relevant, i.e., they could be understood to be admissions, the trial court should have then focused on whether the evidence was so inflammatory that the prejudicial nature of the statements outweighed their probative value. We conclude that the record does not support the trial court’s finding that the prejudice exhibited by the vague nature of the statements outweighed the probative value of the otherwise relevant evidence. This was not a case where the evidence was unfairly prejudicial because it could be misconstrued as highlighting some prior or additional bad act committed by Mr. Gad. The statements either had no relevance to the incident, or they were relevant and thereby were the type of evidence properly put before a jury as tending to show guilt related to the charges. See Blackwell, 787 So.2d at 965 (“Here, the statement is not evidence of another bad act ...; instead, it tends to prove that the defendant had [committed an element of the pending charges].”).

Even if the jury concluded that Mr. Gad’s apologies were not an admission of his criminal misconduct, the alternative explanation does not refer to something that would inflame the jury or appeal improperly to the jurors’ emotions. The fact that Mr. Gad argued with his wife and ordered her to leave does not rise to the level of prejudicial evidence that would be excluded by section 90.403. See Steverson, 695 So.2d at 688-89 (“Certainly, most evidence that is admitted will be prejudicial to the party against whom it is offered. Section 90.403 does not bar [such] evidence .... ” (internal quotations omitted)).

Based on this record, we conclude that Mr. Gad can only be prejudiced by these statements if they are actually found to be relevant to the events at issue. Such prejudice, however, is the type that is inherently associated with relevant probative evidence. As such, the evidence is not precluded by section 90.403. Absent a basis for a proper finding of unfair prejudice, the trial court abused its discretion in excluding the evidence. See Aylesworth, 666 So.2d at 182 (“A trial court’s action taken under [section 90.403] will not ... be overturned absent an abuse of discretion.”). Accordingly, we reverse the order granting the motion in limine and remand for further proceedings.

Reversed and remanded.

MORRIS, J., and FULMER, CAROLYN K., Senior Judge, Concur.

      . We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.140(c)(1)(B).