author: KAHN, J. WETHERELL, J.,

text:
    Dorothy HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-2148.
    District Court of Appeal of Florida, First District.
    May 6, 2010.

      Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.

      Bill McCollum, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   KAHN, J.

Dorothy Harris appeals her conviction for conspiracy to possess hydrocodone, alleging the trial court erred on two separate occasions by permitting testimony that implicated appellant in other crimes. We reverse and remand for a new trial.

PROCEDURAL & FACTUAL BACKGROUND

The events giving rise to Harris’s prosecution occurred on November 18, 2008, when appellant’s brother, David Vaughns, drove to a Jacksonville pharmacy with a prescription for Lorcet (hydrocodone). When Vaughns arrived at the pharmacy’s drive-thru window, he handed the prescription to a pharmacy technician and left with the understanding that he would return in a short while to pick up the medication. The technician noticed that Lorcet was misspelled and that the prescription, written on a pad from Jacksonville Pediatric Associates, was for a James Williams, born in 1984. In addition to the spelling error, the patient’s age clued the technician’s suspicions, as the pediatric clinic normally would not see persons older than 18 or 21.

Police arrested Vaughns when he returned to pick up the prescription, finding approximately 120 hydrocodone pills and another prescription in the car. While still at the scene, police asked Vaughns to contact the owner of the vehicle. Vaughns phoned appellant, who arrived shortly thereafter. Harris denied any knowledge of the prescription Vaughns had tried to fill, and Vaughns told police that he received the prescription from a person he knew as “Junior.”

Vaughns maintained this version of events in the months leading up to prosecution. The State charged Harris and Vaughns by amended information with one count of conspiracy to possess hydroco-done. The same information also charged Vaughns with trafficking in hydrocodone and possession or attempted possession of hydrocodone by fraud. Harris proceeded to trial by jury.

At trial, Vaughns testified for the State, asserting Harris provided the prescription and asked her brother to fill it. Appellant, Vaughns explained, had stolen a prescription pad from the pediatric clinic where she once worked as a medical assistant. Vaughns filled in some remaining blanks by stating that Harris also gave him the keys to her car so he could get to the pharmacy. Vaughns said he knew the prescription was fraudulent, but agreed to fill it anyway.

On cross-examination, defense counsel asked Vaughns whether he testified as to Harris’s involvement because it would help him secure a favorable sentence. Vaughns replied, “Not necessarily. When I told them that that night, but she was going to jail anyway that night. She had a warrant.” Defense counsel objected and moved for a mistrial, arguing that the testimony regarding an outstanding warrant was prejudicial and not elicited. The trial court overruled the objection, finding the information “relevant” and also that defense counsel “invited” this explanation by the preceding line of questioning. Having overruled the objection, the court offered to provide a curative instruction, which defense counsel declined.

The State also called Dr. Nicole Taylor, a pediatrician at the clinic where Harris had once worked. Dr. Taylor testified that appellant had been fired from the clinic about a month before the incident leading to her arrest. On cross-examination, Dr. Taylor stated that Harris was let go as a result of a “management decision,” but had no specific knowledge as to why the clinic terminated Harris’s employment. On redirect, the prosecution asked, “Was there a time ... Harris was the suspect of prescription fraud, aside from this case?” At this point, defense counsel entered an objection, which the court sustained.

The jury convicted appellant as charged. Harris moved for a new trial, which the court denied. The trial court adjudicated appellant guilty of the charged offense and sentenced her to 15 years in prison as an habitual offender.

ANALYSTS

We review a ruling on the admissibility of evidence for abuse of discretion. See Welty v. State, 402 So.2d 1159, 1162-63 (Fla.1981). “Similar fact evidence of other crimes, wrongs, or acts ... is inadmissible when the evidence is relevant solely to prove bad character or propensity.” § 90.404(2)(a), Fla. Stat. (2008). The State does not deny that Vaughns implicated Harris in some other, irrelevant crime when he referenced the outstanding warrant for appellant’s arrest. Rather, the State relies on the “invited error” doctrine to assert that defense counsel “opened the door” to the objectionable mention of the warrant. See Goodwin v. State, 751 So.2d 537 (Fla.1999) (stating that “a party may not make or invite error at trial and then take advantage of the error on appeal”).

The dissent argues that this point is barred because the defense refused the trial court’s offer of a curative instruction. Where the trial court sustains an objection to improper testimony, ordinarily the objecting party must request and avail itself of an instruction from the court that the jury disregard the objectionable evidence. See Duest v. State, 462 So.2d 446, 448 (Fla.1985) (stating that “[t]he proper procedure to take when objectionable comments are made is to object and request [a curative] instruction ... ”). Such rule would not apply here, however, where the court actually overruled the defendant’s objection. Ralston v. State, 555 So.2d 443, 444 (Fla. 4th DCA 1990) (observing that “any curative instruction would have been futile after the trial court overruled the objection and specifically stated that it found the objectionable evidence to be proper”); Johnson v. Canteen Corp., 528 So.2d 1364, 1365 (Fla. 3d DCA 1988) (holding plaintiff “was not required to seek additional forms of relief in order to preserve the matter for appeal” “[o]nce her objection to [the witness’s] testimony was overruled”) (citing Simpson v. State, 418 So.2d 984 (Fla.1982)); see also Salazar v. State, 991 So.2d 364, 382 (Fla.2008) (Pariente, J., dissenting) (recognizing two standards of review for “the introduction of improper comments depending on whether the trial court properly recognized the error and sustained [an] objection or gave a curative instruction (abuse of discretion) or whether the trial court failed to recognize the error and improperly overruled the objection (harmless error to the comments, abuse of discretion to the denial of the mistrial)”) (citing Belcher v. State, 961 So.2d 239, 255 (Fla.2007)); Robinson v. State, 881 So.2d 29, 31 n. 1 (Fla. 1st DCA 2004) (Ervin, J., dissenting) (agreeing “with the majority’s tacit conclusion that the error was preserved, despite the failure of defense counsel to seek either a curative instruction or a mistrial, because of the contemporaneous objection, which was overruled”) (citing Holton v. State, 573 So.2d 284 (Fla.1990)). Peculiar and inconsistent though it might have been for the court to offer to cure what it had declined to rule inadmissible, appellant could not have waived this point, because the response from Vaughns came into evidence.

Vaughns maintained for five months leading up to trial that Harris was not involved in the fraud. At trial, however, Vaughns testified that he only tried to procure the hydrocodone at Harris’s instruction. When confronted with this inconsistency on cross-examination, Vaughns asserted non-responsively that he changed his testimony because there was a warrant out for Harris’s arrest on a different offense, and he did not believe his testimony in the instant matter could prejudice her. Far from inviting the error, defense counsel only alerted the jury that Vaughns had made a plea agreement and thus had a motive to offer more favorable testimony for the State.

Because we find error, we consider next whether the State has met its burden to show that the error was “harmless beyond a reasonable doubt.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). “[T]he improper admission of ... irrelevant collateral crimes evidence is presumptively harmful.” Castro v. State, 547 So.2d 111, 115 (Fla.1989). The State does not meet its burden merely by showing “that the evidence against a defendant was overwhelming.” Id. Where, as here, the only evidence against the defendant consisted entirely of the testimony of her brother— who, none dispute, actually presented the forged prescription — we are unable to say that the error was harmless beyond a reasonable doubt. That the jury knew Harris was wanted in connection with another offense could well have made a significant difference in a case hinging entirely on Vaughns’ credibility. The prejudicial effect only compounded when the prosecutor improperly inquired of Dr. Taylor whether Harris was suspected of prescription fraud in her prior employment with the pediatric clinic. In fact, this subsequent allusion to irrelevant, inadmissible other crimes evidence provided a strand connecting Harris with the subject offense. Although we would likely not reverse based solely on the improper question, we have considered its import in our harmless error analysis.

REVERSED and REMANDED for a new trial.

PADOVANO, J., concurs, and WETHERELL, J., dissents with opinion.

WETHERELL, J.,

dissenting.

I respectfully dissent.

I agree with the majority that Vaughns’ statement that Harris was going to jail because she had a warrant was inadmissible character evidence and that it was not a response invited by the question Vaughns was asked. However, I disagree that reversal is required because of the trial court’s failure to grant a mistrial based upon the statement. In my view, defense counsel invited the error raised on appeal by rejecting the trial court’s offers for a curative instruction. And, to the extent the harmless error standard applies in this case, I would conclude that the error was harmless beyond a reasonable doubt, even when Vaughns’ statement is considered in conjunction with the prosecutor’s question to a different witness implying that Harris had previously been suspected of prescription fraud by her employer.

“The proper procedure to take when objectionable comments are made is to object and request an instruction from the court that the jury disregard the remarks.” Duest v. State, 462 So.2d 446, 448 (Fla.1985); see also Palmer v. State, 486 So.2d 22, 23 (Fla. 1st DCA 1986) (“Generally, both a motion to strike the allegedly improper testimony as well as a request for the trial court to instruct the jury to disregard the proffered testimony are thought to be necessary prerequisites to a motion for mistrial.”). Here, although defense counsel objected to Vaughns’ statement, counsel did not move to strike the testimony or request a curative instruction. Thus, the trial court’s denial of the motion for mistrial could be affirmed on this basis alone.

But there is more. In response to the motion for a mistrial, the trial court, on its own initiative, offered — not once, but twice — to instruct the jury to disregard Vaughns’ statement about Hams’ having a warrant. Defense counsel rejected the trial court’s offers for a curative instruction. The state then requested “in an abundance of caution” that the trial court give the jury a curative instruction, but the trial court denied the request, stating:

Ms. Smith’s [counsel for the state] request that I instruct the jury to disregard the last remark of the witness is probably a good suggestion; however, since the defense has objected to me doing that, I’m not going to do it.

Although it may have been sound trial strategy for defense counsel to reject the trial court’s offer for a curative instruction (so as not to emphasize the testimony to the jury), any error that could have been cured by such an instruction was invited error that cannot serve as a basis for reversal. See Sullivan v. State, 303 So.2d 632, 635 (Fla.1974); Gonzalez v. State, 511 So.2d 703, 704 (Fla. 3d DCA 1987); Clemon v. State, 473 So.2d 271 (Fla. 3d DCA 1985).

It is well-settled that a motion for mistrial should be granted only “in cases of absolute necessity.” Salvatore v. State, 366 So.2d 745, 750 (Fla.1978). Where, as here, the testimony giving rise to the motion for mistrial improperly reflects on the defendant’s character, a mistrial should be granted only if “the error is so prejudicial and fundamental that it denies the accused a fair trial.” Lubin v. State, 754 So.2d 141, 143 (Fla. 4th DCA 2000) (quoting Buenoano v. State, 527 So.2d 194, 198 (Fla.1988)); see also Cole v. State, 701 So.2d 845, 853 (Fla.1997) (“A motion for mistrial should be granted only when it is necessary to ensure that the defendant receives a fair trial.”). However, “where the defendant rejects the trial court’s offer to cure the effect of the inadmissible testimony, a mistrial should not be granted except in the extreme case where the comment is ‘so prejudicial as to vitiate the entire trial.’ ” Lubin, 754 So.2d at 143 (quoting Duest, 462 So.2d at 448); see also Breedlove v. State, 413 So.2d 1, 7 (Fla.1982) (“Improper remarks can be cured by ordering the jury to ignore them unless they are so objectionable that such instruction would be unavailing.”).

In my view, Vaughns’ statement that Harris was going to jail because she had a warrant was not so prejudicial that it vitiated the entire trial. The statement takes up less than two lines of a 278-page trial transcript. The statement was an isolated comment that did not, in any way, become the focus of the trial, and it was not even mentioned by the state in its closing argument. See Cole, 701 So.2d at 853 (affirming denial of motion for mistrial based upon testimony that “was isolated and inadvertent and was not focused upon”).

The majority applies the harmless error standard from DiGuilio to determine that reversal is required because of the trial court’s failure to grant a mistrial based upon Vaughns’ statement that Harris had a warrant. The harmless error standard is the proper standard of review for an overruled defense objection. See Snelgrove v. State, 921 So.2d 560 (Fla.2005). However, the abuse of discretion standard — not the harmless error standard— applies where the trial court does not expressly rule on the objection before ruling on the motion for mistrial. See Dessaure v. State, 891 So.2d 455, 465 n. 5 (Fla.2004); but cf. Salazar v. State, 991 So.2d 364, 381-83 (Fla.2008) (Pariente, J., specially concurring). That is what happened in this case.

The trial transcript reflects that defense counsel objected and asked to approach sidebar immediately after Vaughns’ statement that Harris was going to jail because she had a warrant. The trial court did not rule on the objection, but rather stated “(wjell, go ahead and finish your questioning.” Defense counsel did not press for a ruling on the objection; he simply said “[tjhank you, Your Honor” and proceeded with his questioning.

After defense counsel completed his questioning, the trial court excused the jury and the following colloquy was had:

THE COURT: ... All right Mr. Es-penship [defense counsel], what do you want?
[Defense counsel]: Your Honor, I’d object and request the court to enter an order of mistrial. That testimony was not elicited, and it could be prejudicial to my client, regarding — well, he indicated that there was a warrant for her arrest, it could be prejudicial.
THE COURT: Well, number one, the answer was in response to a question asked by the defense. Secondly, you had pressed him on his attitude, what he told the police, whether she was going to jail or not. And I think his answer was in response to the line of questioning as to what he knew about his sister going to jail that night. So, for that reason, it is arguably relevant; however, I will instruct the jury to disregard the last remark of the witness concerning that, if you want me to. Obviously that adds emphasis to it by saying disregard it, but if you want me to do that, I will do that.
[Defense counsel]: Okay. We’ll just preserve for appeal, Your Honor, if necessary.

At no point did the trial court expressly rule on defense counsel’s objection (or the motion for mistrial), although the court’s comments seem to imply that it was overruling the objection and denying the motion for mistrial. However, the comments are also susceptible to the interpretation that the court was sustaining the objection because there would have been no reason for the trial court to offer a curative instruction if it was overruling the objection.

Based on the error invited by defense counsel and the fact that Vaughns’ statement did not vitiate the entire trial, I would conclude that the trial court did not abuse its discretion in denying Harris’ motion for mistrial.

Even if it were appropriate to apply the DiGuilio standard in this case, I would conclude that the error in admitting Vaughns’ statement was harmless beyond a reasonable doubt. I cannot see how this isolated statement had any effect on the outcome of this case. Contrary to the majority’s suggestion, there is nothing in the record that expressly or impliedly connects Vaughns’ statement to the prosecutor’s question to a different witness (more than 40 pages later in the trial transcript) implying that Harris was previously suspected of prescription fraud. And the trial court sustained defense counsel’s objection to this question before any testimony was given and there was no other reference to the issue at the trial.

For similar reasons, I would also conclude that the trial court did not abuse its discretion in denying Harris’ motion for new trial based upon the prosecutor’s question implying that Harris was previously suspected of prescription fraud. The trial court sustained defense counsel’s objection before any testimony was provided on the issue. The question, albeit improper, was isolated and did not in any way become the focus of the trial.

Accordingly, I respectfully dissent from the decision to reverse Harris’ conviction and remand for a new trial. I would affirm.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Brionna Ieasha WAGNER, Appellee.
    No. 1D09-4061.
    District Court of Appeal of Florida, First District.
    May 6, 2010.
    Bill McCollum, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellee.
   PER CURIAM.

The State appeals the trial court’s grant of the defendant’s motion to dismiss. The State filed a traverse. Because the traverse creates a dispute as to the material facts of the case, we reverse.

The defendant was charged by information with one count of aggravated assault with a firearm. She filed a sworn motion to dismiss, asserting that the material facts did not establish a prima facie case of guilt. She alleged that she fired a gun into the ceiling of the bathroom while the alleged victim was in another room. She also alleged that, although the alleged victim heard the gunshots, the alleged victim did not see the gun. Based on those allegations, she argued that there was no evidence that she intended to do violence to the alleged victim or that the victim was placed in fear.

The State responded by filing a traverse. The State denied under oath the material facts alleged in the motion. The State alleged that, according to the probable cause affidavit, the defendant pointed a gun at the alleged victim while in the same room and intentionally fired three times, missing the alleged victim and striking the wall.

Florida Rule of Criminal Procedure Rule 3.190(d) provides in part:

The state may traverse or demur to a motion to dismiss that alleges factual matters. Factual matters alleged in a motion to dismiss under subdivision (c)(4) of this rule shall be considered admitted unless specifically denied by the state in the traverse. The court may receive evidence on any issue of fact necessary to the decision on the motion. A motion to dismiss under subdivision (c)(4) of this rule shall be denied if the state files a traverse that, with specificity, denies under oath the material fact or facts alleged in the motion to dismiss.

In the instant case, it is clear that the State specifically denied under oath the material facts alleged in the motion. Because this created a dispute as to the material facts of the case, the trial court erred in granting the motion to dismiss. See State v. Elliott, 941 So.2d 567, 568 (Fla. 1st DCA 2006) (“Where the State’s traverse creates a dispute as to the material facts in a case, an automatic denial of the motion to dismiss must follow.”).

Accordingly, we reverse and remand to the trial court with directions to reinstate the charges.

WEBSTER, LEWIS, and ROBERTS, JJ., concur.


text:
    Randy McPHERSON, as personal representative of The Estate of Casey Landes, Appellant, v. GROUND ZERO and Paychex Business Solution and AIG Claims Services, Inc., SRS Claims Services, Appellees.
    No. 1D09-3438.
    District Court of Appeal of Florida, First District.
    May 6, 2010.
    Katherine Stone Agliano of Barbas, Nunez, Sanders, Butler & Hovsepian, P.A., Tampa, for Appellant.
    Douglas A. Peebles of Peebles & Moriarty, P.A., Bradenton, for Appellees.
   PER CURIAM.

Upon review of Appellant’s response to this court’s March 2, 2010, order to show cause, we conclude the order being appealed is a non-appealable, non-final order. See Fla. RApp. P. 9.180(b)(1). Accordingly, the appeal is DISMISSED for lack of jurisdiction.

KAHN, DAVIS, and THOMAS, JJ, concur.


author: CLARK, J.

text:
    Eugene LUCAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-6160.
    District Court of Appeal of Florida, First District.
    May 6, 2010.

      Nancy A. Daniels, Public Defender, Tallahassee, and James T. Miller, Special Assistant Public Defender, Jacksonville, for Appellant.
    Bill McCollum, Attorney General, and Charlie McCoy, Sr. Assistant Attorney General, Tallahassee, for Appellee.
   CLARK, J.

Eugene Lucas appeals from the judgment and sentence imposed after a jury found him guilty of First Degree Murder and Attempted First Degree Murder. The only issue raised on appeal which merits comment is Mr. Lucas’ claim that the trial court erred in sending a video cassette player into the jury room during deliberations, to enable the jury to Anew an exhibit in evidence — the videotape of his voluntary statement to the police.

The video recording was played for the jury during trial, transcribed by the court reporter into the record, and the videotape itself was admitted into evidence. Mr. Lucas testified on his own behalf at trial. Over the objection of Mr. Lucas, the trial judge provided the jury Avith the means to review the videotaped statement in the jury room.

The videotaped statement was not a deposition or out-of-court Avitness testimony. It was thus not excepted from the general rule allowing things received in evidence to be taken to the jury room under Florida Rule of Criminal Procedure 3.400(a)(3) and Young v. State, 645 So.2d 965 (Fla.1994). Mr. Lucas’ statement was against his interest, contained admissions of fact and details of the crimes, and there was no question that the statement was freely and voluntarily given after Mr. Lucas acknowledged his constitutional rights. The police statement was not a substitute for Mr. Lucas’ live testimony at trial. Compare Barnes v. State, 970 So.2d 332 (Fla.2007) (written transcript of defendant’s testimony in previous trial not properly allowed in jury room as exhibit for second trial; jury might question defendant’s decision not to testify in second trial).

The statement Mr. Lucas gave to the police was a confession. As was the case in Thomas v. State, 878 So.2d 458 (Fla. 5th DCA 2004), the trial court’s decision to allow the jury to have access to the videotaped confession in the jury room was Avithin the court’s sound discretion and there was no abuse of that discretion.

AFFIRMED.

BENTON and VAN NORTWICK, JJ, concur.


text:
    Sheetal KUMAR, Appellant, v. Darlene RICHMOND and Sheetal Kumar, M.D., P.A., Appellees.
    No. 1D09-5720.
    District Court of Appeal of Florida, First District.
    May 6, 2010.
    Jean Laws Scott of Law Office of Jean Laws Scott, PLLC, Stuart, for Appellant.
    Kenneth B. Schwartz of Kenneth B. Schwartz, P.A., West Palm Beach, for Ap-pellee Darlene Richmond.
   ON MOTION TO DISMISS

PER CURIAM.

Appellee Darlene Richmond’s motion to dismiss is GRANTED and this appeal is hereby DISMISSED. See § 440.25(5)(c), Fla. Stat. (2009); Fraternal Order of Eagles v. Proudfoot, 116 So.2d 245, 247 (Fla.1959); Machin v. Lumber Transp., Inc., 556 So.2d 446, 447 (Fla. 1st DCA 1990).

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


text:
    Clinton COLSON, III, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1668.
    District Court of Appeal of Florida, First District.
    May 6, 2010.
    Matt Shirk, Public Defender, Fourth Judicial Circuit, and Richard B. Gordon, Assistant Public Defender, Jacksonville, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal of the judgment and sentence rendered on January 29, 2010, in Duval County Circuit Court case number 16-2008-CF-009451-AXXX-MA, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the circuit court for treatment as a notice of appeal in accordance with Florida Rule of Appellate Procedure 9.141(c)(5)(D). The court notes that pursuant to the lower tribunal’s order of January 29, 2010, the Office of the Public Defender has been appointed to represent petitioner on appeal.

WOLF, PADOVANO, and CLARK, JJ., concur.


text:
    Angela WOODHULL, Appellant, v. TOWER OAKS HOMEOWNERS ASSOCIATION, INC., a Florida corporation, and Louise A. Falvo, Appellees.
    No. 1D10-0178.
    District Court of Appeal of Florida, First District.
    May 6, 2010.
    Edward P. Jordan of Edward P. Jordan, II, P.A., Clermont, for Appellant.
    Jesse Caedington of Scruggs & Carmichael, P.A., Gainesville, for Appellee Tower Oaks Homeowners Association, Inc.
   PER CURIAM.

Appellee’s Motion to Dismiss Appeal, filed January 22, 2010, is granted, and this appeal is hereby dismissed for lack of jurisdiction.

Appellant’s Motion to Consolidate, filed January 20, 2010, is granted in part, and case numbers 1D09-4900, 1D09-5222, and 1D09-6247 are consolidated for all purposes. In light of the dismissal of this appeal, to the extent that the Motion seeks consolidation of this appeal with the appeals in case numbers 1D09-4900, 1D09-5222, and 1D09-6247, the motion is denied as moot.

DISMISSED.

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


text:
    Brandon WEINDORF, Appellant, v. HUNGRY HOWIE’S, LLC (uninsured) and Hungry Howie’s Pizza, Inc., AIG Claim Services, Inc./Chartis, Appellees.
    No. 1D09-6242.
    District Court of Appeal of Florida, First District.
    May 6, 2010.
    Melinda R. Shabka, West Palm Beach, and Bill McCabe, Longwood, for Appellant.
    Michael J. McManus of Michael J. Mc-Manus, P.A., Palm Beach Gardens, for Ap-pellee Hungry Howie’s, LLC.
    No appearance for Appellees Hungry Howie’s Pizza, Inc. and AIG Claim Services, Inc./Chartis.
   PER CURIAM.

Upon review of Appellant’s response to this court’s February 2, 2010, order to show cause, we DISMISS this appeal for lack of jurisdiction. See Fla. R. Admin. C. 60Q-6.122(3) (noting motion for rehearing does not toll time for appeal); Mortellaro & Sinadinos, PLLC v. Countrywide Home Loans, 14 So.3d 278 (Fla. 1st DCA 2009) (holding order on rehearing is not appeal-able in its own right); see also, e.g., Metro. Dade County v. Vasquez, 659 So.2d 355, 356 (Fla. 1st DCA 1995) (dismissing untimely appeal for lack of jurisdiction).

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


author: ROWE, J.

text:
    Arnold ZIMMERMAN, as Trustee of the Zimmerman Family Trust, Appellant, v. CADE ENTERPRISES, INC., and Mary S. Cade, Individually, and as Personal Representative of the Estate of Dr. J. Robert Cade, Deceased, Appellee.
    No. 1D09-4394.
    District Court of Appeal of Florida, First District.
    May 7, 2010.

      Jack M. Ross, Brent G. Siegel, and W. Charles Hughes, Siegel Hughes & Ross, Gainesville, for Appellant.
    Sharon H. Proctor, Lake Saint Louis, MO, and Mark Avera, Gainesville, for Mary S. Cade, Appellee; Joseph P. Milton and C. Ryan Eslinger, Jacksonville, for Cade Enterprises, for Appellee.
   ROWE, J.

Arnold Zimmerman appeals the trial court’s order granting interpleader to Cade Enterprises and directing the corporation to place the funds disputed in this action into the registry of the court. Mr. Zimmerman raises two issues on appeal: (1) whether the trial court erred by granting the complaint in interpleader; and (2) whether the trial court erred by not dismissing the complaint in interpleader as barred by the doctrine of res judicata. We affirm as to the second issue without discussion. We also affirm as to the first issue, and for the reasons explained below, we find that the trial court properly ordered interpleader in this matter.

I. Facts and Procedural History

Mary Cade is the widow of Dr. J. Robert Cade, the inventor of the Gatorade sports drink. Dr. and Mrs. Cade formed Cade Enterprises, Inc. in 1989, as an estate planning device, and subsequently transferred to the corporation a portion of the ownership interest in the Gatorade Trust. Mr. Zimmerman served as secretary of the corporation and was a close personal advisor to Dr. Cade for many years. Mr. Zimmerman claims to be one of only a few non-family members who were gifted with stock in the corporation and that he first received shares in 1994, with additional shares given annually for a period of time. He claims ownership of a total of 680 shares.

In August 2008, Mrs. Cade filed suit against Mr. Zimmerman to recover 591 shares of stock that she alleged he obtained through fraud and through attempted transfers that were void. She later amended her complaint to add an express claim for past and future dividends related to those shares. In September 2008, Cade Enterprises’ Board of Directors authorized a distribution of dividends to shareholders pursuant to statute and the corporation’s bylaws. The corporation did not distribute dividends to Mr. Zimmerman for the 591 shares which were the subject of Mrs. Cade’s lawsuit against Mr. Zimmerman.

In October 2008, Cade Enterprises filed its first Complaint in Interpleader against the parties to the Cade-Zimmerman lawsuit, requesting the court to require the parties to interplead their claims to dividends from the same 591 shares of stock. On February 9, 2009, following a hearing, the trial court dismissed the Complaint in Interpleader “without leave to amend because Plaintiff stated no facts at the hearing which would support an amended Complaint in Interpleader.” The court also stated that the order dismissing was “-without prejudice to the parties’ ability to raise the issue of which party is entitled to dividends under a different procedure in any other proceeding.”

In March 2009, Mr. Zimmerman sent a demand letter to Cade Enterprises, demanding damages for failure to distribute to him the dividends associated with the contested 591 shares. In April 2009, Mrs. Cade also sent a demand letter to Cade Enterprises, demanding dividends from the same 591 shares.

On May 8, 2009, Mr. Zimmerman filed a complaint against Cade Enterprises, alleging that the corporation committed theft by failing to distribute the dividends to him for the 591 shares. On May 27, 2009, Cade Enterprises filed a Motion to Dismiss, Counterclaim, and Third Party Complaint in Interpleader against Mr. Zimmerman and Mrs. Cade, the two parties claiming interest to dividends from the same 591 shares.

On July 27, 2009, the trial court heard argument from counsel for both sides on the counterclaim and complaint in inter-pleader. After the hearing, the trial court granted interpleader to Cade Enterprises and directed the corporation to place the disputed funds into the registry of the court. That order is being appealed here.

II. Analysis

We review the trial court’s decision to grant interpleader in this action under the de novo standard. See generally Philip J. Padovano, Florida Appellate Practice § 9.4 (2007-08 ed.). Cade Enterprises instituted the action in interpleader pursuant to Florida Rule of Civil Procedure 1.240. When considering an action under the rule, the trial court may grant interpleader where the party seeking in-terpleader establishes a legal right to proceed under the rule and where the pleadings sufficiently state a cause of action for interpleader. See id; cf. Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732 (Fla.2002).

Mr. Zimmerman argues that in-terpleader was improper here because Cade Enterprises failed to demonstrate the required elements for an action in interpleader. Interpleader is a long-recognized equitable remedy governed by equitable principles used to determine the rights of parties each of whom claim the right to distribution of the same fund or property that is held by a disinterested third person. See Jax Ice & Cold Storage Co. v. South Fla. Farms Co., 91 Fla. 593, 109 So. 212 (Fla.1926); 32 Fla. Jur. 2d Interpleader § 1 (2003). Interpleader allows the third party holding the funds to bring the competing parties into court to litigate their competing claims among themselves instead of litigating it against the party holding the funds. See, e.g., Drummond Title Co. v. Weinroth, 77 So.2d 606 (Fla.1955). The equitable interpleader proceeding provided for in early Florida law is now set forth in Florida Rule of Civil Procedure 1.240. Even after the adoption of rule 1.240, interpleader remains an equitable remedy governed by equitable principles. See Wassman v. Travelers Cas. & Sur. Co., 797 So.2d 626, 631-32 (Fla. 5th DCA 2001).

Rule 1.240 provides in pertinent part,

Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claim of the several claimants or the titles on which their claims depend do not have common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that the plaintiff is not liable in whole or in part to any or all of the claimants.

In Riverside Bank of Jacksonville v. Fla. Dealers & Growers Bank, 151 So.2d 834 (Fla. 1st DCA 1963), a case predating rule 1.240, this court outlined four conditions to maintain an action in “strict interpleader,” which must appear from the pleadings: (1) the same thing, debt (or duty), or stake must be claimed by the defendants; (2) the claims must be dependent or have a common origin; (3) the plaintiff must have no interest in the subject matter; and (4) the plaintiff must be in a position of indifference, having incurred no independent liability to either of the claimants, but must stand indifferent between them merely as a stakeholder, and it must appear that no act on his part has caused the embarrassment of conflicting claims. Id. at 836. Florida courts continue to recite the four common law requirements for interpleader. See, e.g., Prince v. Underhill, 670 So.2d 92, 94 (Fla. 5th DCA 1996); St. Mary’s Traditional Roman Catholic Church, Inc. v. Eight Hundred, Inc., 779 So.2d 317, 319 (Fla. 2d DCA 1999). However, the only absolute requirement remaining under rule 1.240 is that the stakeholder “is or may be exposed to double or multiple liability” for competing claims to a single fund. See 32 Fla. Jur. 2d Interpleader § 2 (2003); Hagendorfer v. Appelquist & Ripley, Inc., 529 So.2d 343 (Fla. 1st DCA 1988); Newkirk Constr. Corp. v. Gulf County, 366 So.2d 813(Fla. 1st DCA 1979). A party may not object to inter-pleader on the grounds that one of the remaining three common law requirements is not met. See, e.g., Motzkin v. Shearson Lehman Bros., 611 So.2d 592, 593 (Fla. 4th DCA 1993) (reiterating that the language of rule 1.240 provides that a party cannot object to joinder in interpleader on any ground except “where a plaintiff is faced with conflicting claims that may result in double or multiple liability”); Bache Halsey Stuart Shields, Inc. v. Witous, 411 So.2d 1324 (Fla. 2d DCA 1982) (noting that under rule 1.240 a plaintiff may proceed in interpleader even when he has caused the conflicting claims or is interested in the stake).

Thus, an interpleader plaintiff is only required to demonstrate that the stakeholder is or may be exposed to double liability for more than one claim to the same funds or property. Here, the record demonstrates that both Mr. Zimmerman and Mrs. Cade claim entitlement to the same dividends: both sent demand letters to Cade Enterprises demanding the dividends for the same 591 shares of stock, and both have initiated actions claiming entitlement to the disputed dividends.

Although Cade Enterprises established the only required element of interpleader under the rule, the pleadings also sufficiently demonstrate the remaining three elements for common law interpleader: the claims of Mrs. Cade and Mr. Zimmerman have a common origin; Cade Enterprises has no claim to the dividends and no interest in which party is entitled to them (the pleadings contain the affidavit of its president, who affirmed that the corporation itself makes no claim to the disputed dividends); Cade Enterprises is indifferent to the outcome of the litigation between the parties, and it will distribute the dividends once the court determines legal entitlement to them.

Mr. Zimmerman also argues that the trial court erred in deciding that interpleader was appropriate without taking evidence. Mr. Zimmerman devotes much of his initial brief to arguing the merits of his claim to the dividends. However, his arguments are premature. Inter-pleader is a two-stage action. See, e.g., N & C Properties v. Vanguard Bank & Trust Co., 519 So.2d 1048, 1050-51 (Fla. 1st DCA 1988); Drummond Title Co. v. Weinroth, 77 So.2d 606, 609 (Fla.1955). At the first stage of interpleader, the court determines only whether interpleader is appropriate, and at the second stage the court determines the merits of the competing claims to the interpleaded property. See Drummond Title Co., 77 So.2d at 609. The order on appeal arises from the first stage of the interpleader action in which the trial court found that the pleadings sufficiently alleged the required elements of inter-pleader.

No evidentiary hearing is required at the first stage of interpleader where the determination of whether the action in interpleader is appropriate may be made from the pleadings. See, e.g., Riverside Bank of Jacksonville v. Fla. Dealers & Growers Bank, 151 So.2d 834, 836 (Fla. 1st DCA 1963) (holding that the conditions for interpleader must appear “from the pleadings”); Joe Hatton, Inc. v. Conner, 247 So.2d 782, 784 (Fla. 4th DCA 1971) (noting that the appellate court had “examined the complaint” and found inter-pleader was appropriate). Thus, at the first stage of an interpleader proceeding, the determination of whether interpleader is appropriate may be based on the pleadings alone.

It is well settled that facts admitted in a pleading are conclusively established on the record and require no further proof. See, e.g., Fernandez v. Fernandez, 648 So.2d 712, 713 (Fla.1995); In re Sackett’s Estate, 171 So.2d 906, 909 (Fla. 1st DCA 1965). That Cade Enterprises faced competing claims from both Mrs. Cade and Mr. Zimmerman for the dividends from the same shares is well established by the pleadings in this case. Accordingly, no evidentiary hearing was required and the trial court’s order granting interpleader is AFFIRMED.

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


text:
    Rodrigo A. PENARANDA, Appellant, v. FLORIDA DEPARTMENT OF REVENUE obo Angela C. SANTIAGO, Appellee.
    No. 1D09-5960.
    District Court of Appeal of Florida, First District.
    May 7, 2010.
    Rodrigo A. Peñaranda, pro se, Appellant.
    Bill McCollum, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellee Florida Department of Revenue.
   PER CURIAM.

AFFIRMED. See Morrison v. State, 818 So.2d 432, 446 (Fla.2002) (“In order to preserve the issue for appellate review, a party must have made the same argument to the trial court that it raises on appeal.”). Compare Richardson v. Dep’t of Revenue ex rel. Moore, 742 So.2d 445, 447 (Fla. 4th DCA 1999) (holding that because Richardson’s “sworn response to the commissioner’s report and his sworn motion for rehearing sufficiently raised an issue of fact as to whether he received notice of the August 5 hearing [on a petition to vacate a paternity judgment and reimburse a tax refund that had been divested to pay child support], the trial court was obligated to resolve the issue only after an evidentiary hearing.”).

BENTON, VAN NORTWICK, and CLARK, JJ., concur.


text:
    Shallist Thomas HUDSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1244.
    District Court of Appeal of Florida, First District.
    May 7, 2010.
    James Owens, Public Defendei*, and Brandon S. Morris, Assistant Public Defender, Pensacola, 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 September 21, 2009, judgment and sentence in Escambia County Circuit Court case number 03-CF-4136-A. 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 qualities for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

HAWKES, C.J., VAN NORTWICK and MARSTILLER, JJ., concur.


text:
    Victor R. LATIMORE, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Amerigas Propane, Inc., Appellees.
    No. 1D10-1386.
    District Court of Appeal of Florida, First District.
    May 7, 2010.
    Victor R. Latimore, pro se, Appellant.
    Geri Atkinson-Hazelton, General Counsel, Tallahassee, for Appellee, Florida Unemployment Appeals Commission.
   PER CURIAM.

Inasmuch as the notice of appeal was not timely filed, we are required to dismiss this appeal for lack of jurisdiction. See Fla. RApp. P. 9.110(c); First Nat’l Bank in Ft. Myers v. Fla. Unemployment Appeals Comm’n, 461 So.2d 208 (Fla. 1st DCA 1984) (stating that appellant’s failure to file the notice of appeal within the requisite 30-day period is “an irremediable jurisdictional defect.”). However, because appellant alleges that he did not receive a copy of the final order until the time for filing a notice of appeal had expired, this disposition is without prejudice to appellant’s right to seek relief by filing a motion with the Unemployment Appeals Commission requesting that it vacate and reenter the final order at issue. See Etienne v. Simco Recycling Corp., 721 So.2d 399 (Fla. 3d DCA 1998).

HAWKES, C.J., VAN NORTWICK and MARSTILLER, JJ., concur.


text:
    Johnnie C. QUILLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1807.
    District Court of Appeal of Florida, First District.
    May 7, 2010.
    Matt Shirk, Public Defender, and Richard B. Gordon, Assistant Public Defender, Jacksonville, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the February 26, 2010, judgment and sentence in Duval County Circuit Court case number 16-2004-CF-006033-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.

HAWKES, C.J., VAN NORTWICK and MARSTILLER, JJ., concur.


text:
    Eric Lamont SANDERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1811.
    District Court of Appeal of Florida, First District.
    May 7, 2010.
    Matt Shirk, Public Defender, and Debra D. Billard, Assistant Public Defender, Jacksonville, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the January 29, 2010, judgment and sentence in Duval County Circuit Court case number 16-2008-CF-016681-BXXX-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.

HAWKES, C.J., VAN NORTWICK and MARSTILLER, JJ., concur.


author: WALLACE, Judge.

text:
    Trenton HERRON, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4534.
    District Court of Appeal of Florida, Second District.
    May 7, 2010.
   WALLACE, Judge.

Trenton Herron filed a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 raising five claims with multiple subparts. The post-conviction court denied some claims and dismissed others as facially insufficient. Instead of setting a reasonable time limit of no more than thirty days for amending the facially insufficient claims as required by Spera v. State, 971 So.2d 754, 761 (Fla.2007), the postconviction court permitted amendment at any time within the two-year time limit of rule 3.850(b), which in Mr. Herron’s case does not expire until approximately March 9, 2011. At the same time, the postconviction court erroneously notified Mr. Herron that he could appeal this nonfinal order within thirty days, and Mr. Herron did so.

We do not have jurisdiction to review this nonfinal order. See Havens v. State, 27 So.3d 803, 804 (Fla. 2d DCA 2010); Christner v. State, 984 So.2d 561, 562 (Fla. 2d DCA 2008). And because the postcon-viction court did not specify a reasonable time for Mr. Herron to amend the motion, we cannot relinquish jurisdiction for entry of a final order but must dismiss this appeal.

On remand, the postconviction court should first enter a revised order allowing amendment within a reasonable time as dictated by Spent. If Mr. Herron does not amend the motion within the specified time, the court should enter a final order disposing of all of Mr. Herron’s claims. If Mr. Herron does amend his motion, the court must consider the amendments in its final disposition. See Lawrence v. State, 987 So.2d 157, 159 (Fla. 2d DCA 2008).

Dismissed and remanded.

WHATLEY and LaROSE, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Ricardo RIVERA, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-5264.
    District Court of Appeal of Florida, Second District.
    May 12, 2010.
    James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Ricardo Rivera challenges his convictions and sentences for attempted trafficking in heroin and conspiracy to traffic in twenty-eight grams or more of heroin. We affirm his convictions without discussion. We affirm his sentences and the orders on costs but remand for corrections in the written sentences to conform to the trial court’s oral pronouncements.

The trial court orally sentenced Rivera on September 22, 2008, to ten years in prison for attempted trafficking in heroin (count 2) and to a minimum-mandatory term of twenty-five years for conspiracy to traffic in heroin (count 3). The trial court took Rivera’s plea and orally sentenced him on count 1 (not at issue here) on December 2, 2008. At that hearing, the trial court recognized that count 1 was based on a no contest plea and that Rivera had previously been sentenced on counts 2 and 3. All sentences were imposed concurrently. The written judgment and sentences on all three counts were not entered until December 2, 2008, and were not filed until December 12, 2008. Rivera filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Because the trial court did not timely rule on the motion, it is deemed denied. See Fla. R.Crim. P. 3.800(b)(1)(b), (b)(2)(b).

The motion to correct sentencing error raised the following issues:

(1)The judgment, sentence and costs order for counts 2 and 3 should have been filed nunc pro tunc to Rivera’s sentencing on September 22, 2008 (though not duplicate costs for this single case upon his subsequent sentence on count 3);
(2) The judgment incorrectly reflects that Rivera entered a plea on counts 2 and 3, when he was convicted by jury after trial;
(3) The sentences on counts 2 and 3 incorrectly show the trial judge deferred sentencing from July 24, 2008 (the jury verdict date) to December 2, 2008, when Rivera was sentenced on counts 2 and 3 on September 22, 2008; and
(4) The record lacks adequate documentation to support the imposed $4,000 in prosecution costs to the Statewide Prosecutor and $4,008 investigative costs to the Lee County Sheriffs Office[.]

The rule 3.800(b)(2) motion preserved the issue of the written sentences conflicting with the trial court’s oral pronouncement. See Barnes v. State, 977 So.2d 801, 802 (Fla. 2d DCA 2008). The written sentences must conform to the oral pronouncement. See id. As to the first three issues, we direct the trial court to correct the sentencing documents to reflect that (1) Rivera’s sentences on counts 2 and 3 are nunc pro tunc to his sentencing on September 22, 2008; (2) he was convicted by a jury after a trial on counts 2 and 3; and (3) that he was sentenced on counts 2 and 3 on September 22, 2008.

With respect to the fourth issue concerning prosecution and investigative costs, under the facts of this case the rule 3.800(b)(2) motion did not preserve that issue for review. At the sentencing hearing on September 22, 2008, the prosecutor said that the State was requesting $4008.50 for investigative costs and $4000 for prosecution costs. The prosecutor further stated, “I don’t believe the Defense has an objection to those.” Rivera did not make any argument in opposition, and the trial court orally imposed those costs without objection. Not until he filed his rule 3.800(b)(2) motion did Rivera argue that without proper documentation of costs, the prosecution and investigative costs over $100 could not be imposed and should be stricken.

Based upon Mapp v. State, 18 So.3d 33 (Fla. 2d DCA 2009), we conclude that the alleged error is one in the sentencing process that required a contemporaneous objection and not one in the sentencing order. An error in the sentencing process cannot be preserved via a rule 3.800(b) motion. Id. at 37. Thus, in accordance with Mapp, we determine that the costs issue has not been preserved.

Mapp is analogous because there the defendant failed to make a contemporaneous objection regarding the sufficiency of the evidence at a restitution hearing. Id. at 36. Here, Rivera failed to object to a lack of documentation for prosecution costs and investigative costs when the trial court announced those costs. Further, the prosecutor asserted that the defense had no objection to those costs, and defense counsel did not argue against the request for costs. This court in Mapp recognized that “rule 3.800(b) was not intended to circumvent rules requiring contemporaneous objections.” Id. at 37 (quoting Jackson v. State, 983 So.2d 562, 573 (Fla.2008)). The court affirmed the restitution order, determining that counsel waived the issue of insufficient evidence of restitution by failing to object at the hearing when the trial court imposed the amount of restitution. Id.

Cases citing Mapp have determined that errors regarding the sufficiency of evidence to support restitution amounts did not constitute fundamental error. See Warren v. State, 23 So.3d 218, 219 (Fla. 1st. DCA 2009); Pilon v. State, 20 So.3d 992, 993 (Fla. 4th DCA 2009). In addition, the Florida Supreme Court has previously stated, “We conclude that an unpreserved error in the assessment of costs cannot be considered a serious, patent sentencing error that should be corrected on appeal as fundamental in the absence of proper preservation in the trial court.” Maddox v. State, 760 So.2d 89, 109 (Fla.2000).

Because Rivera did not raise a contemporaneous objection at the sentencing hearing regarding lack of documentation, the costs issue is not preserved for review. Further, under these circumstances, the lack of documentation as to the costs does not constitute fundamental error. Therefore, we affirm the orders on costs.

Affirmed but remanded for correction of the written sentences.

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


author: LaROSE, Judge.

text:
    CAPITAL ONE, N.A., as successor by merger to Chevy Chase Bank, F.S.B., Petitioner, v. Douglas R. FORBES, Respondent.
    No. 2D09-4735.
    District Court of Appeal of Florida, Second District.
    May 12, 2010.

      Carrie Ann Wozniak of Akerman Sen-terfitt, Orlando, for Petitioner.
    Nicole E. Durkin of Deeb & Durkin, P.A., St. Petersburg, for Respondent.
   LaROSE, Judge.

Capital One, N.A. (the Bank), seeks a writ of certiorari to quash a protective order that allows the disclosure of trade secrets to Mr. Forbes’s consultants and experts. The Bank also asks us to quash the trial court’s order because it did not sufficiently limit the scope of discovery.

Factual Background

The Bank filed a mortgage foreclosure action against Mr. Forbes. Allegedly, Mr. Forbes breached a construction loan agreement. Mr. Forbes filed a counterclaim alleging breach of contract, anticipatory breach of contract, and fraud in the inducement.

Mr. Forbes requested documents from the Bank. It produced responsive documents except, as relevant here, for requests ten and thirteen:

10. All technical and administrative manuals used in the internal communications system of Lender, or through which Lender policies, practices and procedures were communicated to its bank officers, employees, agents, partners, managers and/or “staff,” effective during the period from January 1, 2006 through the present, including, but not limited to, those manuals relating to construction or developer financing.
13. All complaints, claims or protests brought in any judicial forum, arbitration proceeding, or industry dispute resolution forum by Lender clients or third parties against Lender alleging any breach of obligations, terms, conditions, or responsibilities by Lender in the conduct or exercise of its responsibilities and obligations with respect to or arising from engaging in the business of banking within the preceding five (5) years.

The Bank sought a protective order. The Bank argued that its construction-lending manual is a trade secret requiring adequate measures to protect against improper dissemination. There appears to be no dispute that the manual is a trade secret. The Bank also argued that other complaints, claims, or protests made against the Bank in any forum in the past five years were irrelevant, not reasonably calculated to lead to the discovery of any admissible evidence, and intended solely to harass the Bank. See generally, Allstate Ins. Co. v. Boecher, 733 So.2d 993, 995 (Fla.1999) (holding that there is an exception to the rule of complete discovery where it may be harassing or embarrassing).

After a hearing, the trial court denied the Bank’s motion as to request 13, except it narrowed the time frame to three years. The trial court concluded that the requested documents “may potentially lead to admissible evidence just based upon the counter plaintiffs theory of policy written or potentially otherwise as to the lender’s motive to pull out of the project.”

As for the manual, the Bank’s counsel brought the document to the hearing for an in-camera inspection. The trial court did not inspect the materials but accepted counsel’s explanation that the materials contained the Bank’s lending guidelines and practices. The Bank’s counsel argued that the Bank would produce the materials if the trial court entered an adequate confidentiality order. The trial court denied the motion for a protective order, but agreed to grant a “confidentiality agreement between the parties for the protection of [the Bank].”

The trial court asked Mr. Forbes’s counsel to take the Bank’s proposed confidentiality order from the hearing and draft an order satisfactory to both sides. The Bank and Mr. Forbes could not agree. Each submitted a proposed order to the trial court. To center the dispute, we note that Mr. Forbes’s proposed order had no provision requiring consultants, experts, or their employees retained for the litigation to consent to the confidentiality provisions before viewing the manual.

The trial court adopted Mr. Forbes’s proposed order. The order provided that documents marked “Confidential” shall not be disclosed to any persons, except for counsel actively engaged in the litigation along with their employees and staff, parties and employees of the parties, persons with prior knowledge of the documents or the confidential information contained therein, and court officials involved in the litigation. Other relevant portions of the order provide as follows:

3. Plaintiff shall produce the documents requested, however the time period shall be limited to three (3) years prior to the date of this Order.
4. That the documents being produced pursuant to Paragraph 10 of Defendant’s First Request for Production of Documents which are marked “Confidential” by Plaintiffs counsel shall not be disclosed to any persons, except that such documents may be disclosed or otherwise utilized as follows:
(B) Such documents may also be disclosed to persons noticed for depositions during the course of such depositions, including retained outside consultants or experts and their employees retained for the purpose of assisting counsel in the litigation;
5. Within 30 days after final conclusion of all aspects of this litigation, stamped confidential documents and all copies of same ... shall be returned to the party or person which produced such documents or, at the option of the producer, destroyed.

(Emphasis added.)

Certiorari Jurisdiction

We may grant a petition for certiorari “only when the petitioner establishes (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on post-judgment appeal. We examine prongs two and three first to determine our certiorari jurisdiction.” DeLoach v. Aird, 989 So.2d 652, 654 (Fla. 2d DCA 2007) (citing Parkway Bank v. Ft. Myers Armature Works, Inc., 658 So.2d 646, 648-49 (Fla. 2d DCA 1995)). If jurisdictional prongs two and three are not fulfilled, then we dismiss the petition rather than deny it. Id.

Analysis

Other Claims Specified in Request 13

The trial court denied, in part, and granted, in part, the Bank’s motion for a protective order as to these materials. The trial court narrowed Mr. Forbes’s request from five years to three years but did not otherwise narrow its breadth.

Discovery allows the parties to find potentially relevant evidence. The conduct of discovery is left to the trial court’s sound discretion. Fla. R. Civ. P. 1.280(b)(1); Friedman v. Heart Inst. of Pott St. Lucie, Inc., 863 So.2d 189, 193 (Fla.2003). The order on review does not necessarily cause irreparable harm by allowing discovery of what the Bank claims to be irrelevant materials. See Am. Home Assurance Co. v. Vreeland, 973 So.2d 668, 671 (Fla. 2d DCA 2008) (citing First Paradee, Ltd. v. Jones, 828 So.2d 483, 485 (Fla. 2d DCA 2002)). Thus, certiorari jurisdiction is improper. We dismiss this portion of the Bank’s petition.

Manuals Specified in Request 10

The Bank argues that the trial court departed from the essential requirements of law by requiring the disclosure of trade secrets without providing adequate protective measures. An order requiring disclosure of trade secrets may cause irreparable injury that cannot be corrected on appeal; the disclosure lets the “cat out of the bag.” Id. Here, the trial court did not err. Its order sufficiently protects the Bank. See Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). The Bank is concerned that experts or consultants retained by Mr. Forbes will misuse the materials. The order does not ignore that concern; only specified individuals may have access to the materials for the stated and limited purposes of assisting counsel in the litigation. No other use is contemplated. Further, the order requires that designated confidential materials, and any copies, be returned or destroyed at the end of the litigation.

Perhaps the order could have been clearer. However, we understand it to limit experts’ and consultants’ access to confidential information. Paragraph 4 of the order provides a blanket protection that documents may not be disclosed to “any person,” with enumerated exceptions. Importantly, the identification of people to whom access is granted is drawn narrowly to include only the parties and their employees, court employees, and outside consultants and experts. As for the consultants and experts, the order allows access only for a limited time and for the limited purposes of assisting counsel in this litigation. The trial court did not depart from the essential requirements of law by entering the order proposed by Mr. Forbes’s counsel. As to this issue, the petition for certiorari is denied.

Dismissed in part; denied in part.

SILBERMAN and CRENSHAW, JJ., Concur.

      . We do not decide who would be liable should a consultant or expert violate the protective order. See, e.g., Quinter v. Volkswagen of Am., 676 F.2d 969, 973 (3d Cir.1982) (holding a nonparty liable for civil contempt where the nonparty had knowledge of the protective order.)


author: CASANUEVA, Chief Judge.

text:
    William R. HARVEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2385.
    District Court of Appeal of Florida, Second District.
    May 12, 2010.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.

      William R. Harvey, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Anne S. Weiner, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Chief Judge.

William R. Harvey appeals final orders in three circuit court cases disposing of his motion for postconviction relief founded on Florida Rule of Criminal Procedure 3.850. Because the postconviction court’s orders failed to address the ineffective assistance of counsel claims or attach those portions of the trial record that conclusively refute these claims, we reverse.

For crimes of kidnapping and sexual battery committed in 1992, Harvey was sentenced to incarceration followed by probation. During his probationary term, he allegedly committed two new crimes. He admitted violating probation and pleaded guilty to the new crimes. The court revoked his probation and imposed further prison terms for the kidnapping and sexual battery offenses. The court also imposed concurrent prison terms for the two new offenses.

Following the revocation of probation, Harvey timely sought postconviction relief. His rule 3.850 motion asserted errors in the judgment and sentencing documents in all three cases and ineffective assistance of counsel in advising him to plead to the violation of probation and the two new charges. At the evidentiary hearing scheduled to resolve his motion, his post-conviction counsel and the assistant state attorney reached an agreement resolving the errors apparent on the judgment and sentencing documents. But for reasons unknown, the hearing concluded without taking evidence on or resolving the ineffective assistance of counsel claims. The postconviction court’s final orders corrected the judgment and sentencing documents but did not dispose of the various ineffective assistance claims, either procedurally or substantively. Neither did any order have attachments conclusively refuting Harvey’s ineffective assistance claims. See Hempstead v. State, 980 So.2d 1254 (Fla. 2d DCA 2008) (reversing a summary denial of postconviction relief because the postconviction court did not adequately address a claim and the order and attachments did not conclusively refute the claim). So Harvey appealed the orders, arguing that his ineffective assistance claims must be addressed, but the orders correcting the judgment and sentencing documents need not be because they properly resolved those errors.

On appeal, the State concedes that a proper evidentiary hearing is necessary to resolve the overlooked claims of ineffective assistance of counsel. See House v. State, 869 So.2d 1229 (Fla. 2d DCA 2004). Therefore, we reverse the orders in these three cases that failed to address the ineffective assistance claims and remand for an evidentiary hearing.

KELLY and CRENSHAW, JJ., Concur.


text:
    Recardo CLAYTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-641.
    District Court of Appeal of Florida, Third District.
    May 12, 2010.

      Recardo Clayton, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850(a). We affirm because the motion is successive.

Clayton was convicted and sentenced after a jury trial on July 7, 2006, which was affirmed on February 20, 2008. See Clayton v. State, 974 So.2d 1172 (Fla. 3d DCA 2008). Clayton then filed a post-conviction relief motion, which was considered on May 20, 2008, and denied without an evidentiary hearing. Clayton appealed and on November 5, 2008, we issued our opinion, affirming. See Clayton v. State, 994 So.2d 1179 (Fla. 3d DCA 2008). Clayton then filed a second 3.850 motion, which was summarily denied.

We conclude that three of the four claims that Clayton raised were successive and duplicative. Accordingly, the trial court was correct in summarily denying them without an evidentiary hearing. With regard to claim number four, Clayton claims that trial counsel was ineffective for failing to call a material eye witness that would have testified as to what happened at the store at the time of the theft on the date in question. As the Supreme Court has stated, “[A] second or successive motion for postconviction relief can be denied on the ground that it is an abuse of process if there is no reason for failing to raise the issues in the previous motion.” Moore v. State, 820 So.2d 199, 205 (Fla.2002), citing Pope v. State, 702 So.2d 221, 223 (Fla.1997). See also Leunne v. State, 981 So.2d 1227, 1228 (Fla. 3d DCA 2008); Scrambling v. State, 919 So.2d 671, 672 (Fla. 5th DCA 2006) (holding that rule 3.850 motion for postconviction relief was procedurally barred as successive where the issue raised in the pending rule 3.850 motion was one that could or should have been raised in the earlier rule 3.850 motion). Clayton has not alleged any reason why this ground was not raised in his prior 3.850 motion.

Affirmed.


author: WARNER, J.

text:
    Karim BORDES, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-300.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2010.

      Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   WARNER, J.

Appellant, Karim Bordes, challenges his conviction for burglary of a dwelling, arguing that the trial court erred in failing to give an instruction on the lesser-included crime of trespass. Because all of the elements of trespass were present, and there was evidence to support the charge, the instruction should have been given when requested by the defendant. We reverse.

The police apprehended Bordes in the home of Tori Webber after a neighbor reported a suspicious vehicle in the area. Bordes ran when he first saw police, and dropped gloves as he tried to exit the house. When the officers asked Bordes what he was doing in the house, he told them that a friend who owed him money asked him to come to the house so that he could pay him back. At trial the friend testified that he owed money to Bordes and had called him to tell him to come by and pick it up, but the friend did not tell him to come to the home where the police detained Bordes. The owner of the home, Tori Webber, testified that she did not know Bordes or his friend and did not give either permission to be in her home.

At trial, Bordes requested that the court give the lesser-included instruction of trespass. The court declined, determining that the information did not contain all of the elements of trespass. The jury found Bordes guilty of burglary, and the court convicted and sentenced him to eighteen years in prison as a habitual offender. He appeals.

A trial court must give a jury instruction on a permissive lesser-included offense if: (1) the indictment or information alleges all the statutory elements of the permissive lesser-included offense, and (2) there is some evidence adduced at trial establishing all of those elements. Khianthalat v. State, 974 So.2d 359, 361 (Fla.2008). Because this issue involves strictly legal determinations, our standard of review is de novo. See Williams v. State, 957 So.2d 595, 598 (Fla.2007).

Bordes was charged with burglary of a dwelling. The information alleged that Bordes did “unlawfully, enter or remain in a structure, to wit: a dwelling ... property of Tori Webber, with intent to commit therein the offense of Theft ... contrary to F.S. 810.02(1) and F.S. 810.02(3).” Trespass is a category II permissive lesser-included of burglary. Where the information alleges all of the statutory elements of the lesser offense, and the evidence at trial establishes each of the elements, it is error not to give the trespass instruction. See Henig v. State, 820 So.2d 1037, 1039 (Fla. 4th DCA 2002); Piccioni v. State, 833 So.2d 247, 248-49 (Fla. 4th DCA 2002). In both Henig and Piccioni we held that an information worded identically to the one in this case (save for the victim’s name) included all of the statutory elements of trespass.

The evidence presented at trial covered each element of the crime of trespass. Bordes willfully entered Webber’s home without her permission. Thus, both predicate requirements to give the instruction were established, and the jury should have been instructed on trespass.

The state contends that this case is distinguishable from the foregoing cases, because Bordes claimed that his friend gave him “permission” to enter the home, not Webber. This makes no difference to the applicability of the charge. The owner, Webber, did not give permission. The jury must deliberate whether Bordes had the intention to commit a theft within the home, or whether, as he contends, he was simply waiting for his friend in the wrong house, which would be a trespass.

Because this case will have to be retried, we also briefly address Bordes’ claim that the court erred in permitting the state to elicit testimony from the victim regarding calls that Bordes’ mother made to her, which intimidated her. We agree that it was error to admit the testimony where the state did not use the evidence to explain an inconsistency in the witness’s testimony or use it as impeachment. See Koon v. State, 513 So.2d 1253 (Fla.1987); Lopez v. State, 716 So.2d 301 (Fla. 3d DCA 1998).

Reversed and remanded for further proceedings.

DAMOORGIAN and LEVINE, JJ., concur.


author: TAYLOR, J.

text:
    Mary Lisa YAWT, Peter Michael Yawt and Nancy Jane Yawt, Appellants, v. Russell E. CARLISLE, as Trustee of the Peter Yawt Remainder Trust of June 17, 1969, William Webb, as Successor Trustee of the Peter Yawt Revocable Trust dated January 22, 2002, and Sandra Dee Yawt, Appellees.
    No. 4D09-1993.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2010.

      Stephen L. Zimmerman of Zimmerman, Zimmerman & Miceli, P.A., Pompano Beach, for appellant.
    Stephen M. Carlisle of Stephen M. Car-lisle, P.L., Fort Lauderdale, for Appellee-Russell E. Carlisle, and Larry F. Witte of Witte & Craig, P.A., Pompano Beach, for Appellee-William Webb, and Gary L. Rudolf of Rudolf & Hoffman, P.A., Fort Lauderdale for Appellee-Sandra D. Yawt.
   TAYLOR, J.

Appellants, beneficiaries of a land trust, appeal a post-judgment order granting ap-pellees’ motion to amend the final judgment and approving a new agreement for the sale of trust property. We agree that for the relief sought, appellees were required to file either a new action or supplement pleadings pursuant to Florida Rule of Civil Procedure 1.110(h). We therefore reverse and remand for further proceedings.

This case involves a proposed sale of trust property. The sole trust asset is a trailer park. Appellees, the trustee and one beneficiary (Sandra Dee Yawt), wanted the sale to be approved by the court, while appellants, the other three beneficiaries, opposed the sale. The case began as an action filed by the trustee to terminate the trust and establish and enforce a lien on the property for the payment of fees. Appellee Yawt filed a counterclaim and cross-claim, essentially seeking to have herself appointed as successor trustee and authorized to sell the property. Appellants defaulted as to the main claim filed by the trustee.

On August 11, 2008, the trial court entered an order granting appellees’ joint motion for authority to sell the trust’s real property. On November 12, 2008, the trial court entered its Final Judgment on Default. It awarded the trustee $150,000 in fees to be paid from the trust upon the sale of the subject property. A lien in that amount was placed on the property. The final judgment approved the trustee’s final accounting and authorized the trustee “to complete the sale of the Wilton Manors Property to PGH Holdings, under the purchase and sale agreement authorized by the Court by order dated August 11, 2008.”

After the final judgment was entered, the purchaser for the property received the results of its environmental inspection of the property and declined to close under the approved agreement. The trustee and potential purchaser negotiated and entered into a new contract, which significantly reduced the purchase price and extended the closing date. Appellees sought court approval or ratification of the new agreement by filing an unsworn “Petition for Approval of Amended Contract.” It alleged, inter alia:

4) In performing due diligence and environmental inspections of the property, it has been discovered that certain negative environmental factors exist which will require that remediation will be performed to bring the property into a state where it can be properly developed.
5) Due to the significant cost of this remediation along with other factors, it has been necessary for the parties to enter into an amended contract, which reduces the purchase price previously approved by the Court. All parties to the original contract have executed the amendment to the contract which is attached as Exhibit “A” to this agreement.

The petition indicated that it was served on appellants by mail on March 31, 2009.

The trial court held a hearing on the petition on April 14, 2009. Appellants were represented by counsel at this hearing. Counsel for appellees argued that appellants, as “defaulted defendants,” had no standing unless or until they got relief from their defaults. Counsel for appellants, Stephen Zimmerman, argued that the final judgment did not reserve jurisdiction for the court to approve a new agreement; appellees thus needed to file a new action, or at a minimum, supplemental pleadings, with service on appellants, and afford appellants an opportunity for discovery and an evidentiary hearing on the relief they sought. He argued as follows:

MR. ZIMMERMAN: ... the default was disposed of pursuant to the final judgment. The petitioning parties are now asking for additional relief, something that was not asked for in the complaint and was not with the judgment and therefore the default if it existed and if it was entered properly cannot prevent our clients from asserting their position in this case because they’re not in default of the current proceeding.
The current proceeding that’s before the Court right now was initiated by a motion in a case that’s already closed and then by only a couple of days notice without even a chance to respond. We’re not even having an evidentiary hearing, we’re just having attorneys argue about this, so it’s entirely inappropriate for the Court to dispose of this matter in a summary way like this without an evidentiary hearing, without a new case being filed, without a pleading.
THE COURT: What would be the purpose of an evidentiary hearing, what are we going to establish?
MR. ZIMMERMAN: Establish whether this is a fair price for this property. I mean, the Court is just relying upon attorneys coming in here and talking. We think this is not a fair price for this property....

Over appellants’ objection, the trial court entered an order granting the petition for approval of the amended contract.

Because this appeal solely concerns issues of law, our review is de novo. See Baker & Hostetler, LLP v. Swearingen, 998 So.2d 1158, 1161 (Fla. 5th DCA 2008). Appellants rely upon the provisions in Florida Rule of Civil Procedure 1.110(h) for their argument that appellees needed to file subsequent or supplemental pleadings for the relief they sought. This rule provides as follows:

When the nature of an action permits pleadings subsequent to final judgment and the jurisdiction of the court over the parties has not terminated, the initial pleading subsequent to final judgment shall be designated a supplemental complaint or petition. The action shall then proceed in the same manner and time as though the supplemental complaint or petition were the initial pleading in the action, including the issuance of any needed process. This subdivision shall not apply to proceedings that may be initiated by motion under these rules.

Fla. R. Civ. P. 1.110(h).

The Committee Note to this rule states, in pertinent part:

Subdivision (h) is added to cover a situation usually arising in divorce judgment modifications, supplementary declaratory relief actions, or trust supervision .... The last sentence exempts post judgment motions under rules 1.480(c), 1.530, and 1.540, and similar proceedings from its purview.

Fla. R. Civ. P. 1.110(h), Committee Note, 1971 Amendment.

Appellants argue that appellees failed to comply with this statute and that the trial court erred in granting relief based on their mere filing of a petition. They sufficiently preserved this issue for appeal, as they similarly argued below that the case was not procedurally ripe because appel-lees did not file a new pleading or afford them an opportunity for discovery and an evidentiary hearing.

Appellees argue that appellants should not be allowed to participate in this case since they did not move to have their defaults set aside. In so arguing, they rely on the general principle that a default terminates the defending party’s right to further defend, except to contest the amount of unliquidated damages. See Donohue v. Brightman, 939 So.2d 1162, 1164 (Fla. 4th DCA 2006).

However, as we explained in Board of Regents v. Stinson-Head, Inc., 504 So.2d 1374, 1375 (Fla. 4th DCA 1987), a party who obtains a default judgment is only entitled to the relief sought in its complaint and any further relief must be sought by application and notice to the defendant. In that case, the plaintiff filed a declaratory judgment action. Id. at 1374. After the defendant defaulted, the trial court entered a default final judgment which exceeded the scope of the original pleadings. Id. at 1375. We reversed, quoting Trawick’s discussion of defaults:

The party seeking affirmative relief may not be granted relief that is not supported by the pleadings or by substantive law applicable to the pleadings. A party in default may rely on these limitations. If the party seeking affirmative relief wants to assert a new additional claim, it must be served on the party in default in the same manner as the initial pleading and he must be given an opportunity to defend against the claim. The effect of the admissions made by the entry of a default is for purposes of the pending action only.

Id. (quoting H. Trawick, Trawick’s Florida Practice and Procedure § 25-4 (1986 ed.)) (emphasis omitted). See also Freeman v. Freeman, 447 So.2d 963, 964 (Fla. 1st DCA 1984).

Because appellees have sought different relief than that originally pled, they were required to re-serve appellants in the same manner as they did originally and give them a new opportunity to respond, unfettered by the original default. The defaults were moot once the requested relief changed, i.e., approval of a different contract. Contrary to appellees’ contention, the reservation in the final judgment to enforce the lien was not broad enough to encompass the relief sought herein.

Reversed and Remanded.

STEVENSON and MAY, JJ., concur.


text:
    Michael NELFRARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4418.
    Distinct Court of Appeal of Florida, Fourth District.
    May 12, 2010.
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

After entering a plea and being sentenced for possession of cocaine, appellant filed a timely motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(J). He claimed that his counsel coerced him into entering a plea and misinformed him as to the maximum penalty he could face. The trial court summarily denied the motion, attaching a copy of the transcript of the plea colloquy. On appeal, appellant claims that the trial court erred in failing to appoint an attorney to represent him where he alleged a conflict with his current attorney in his motion. We affirm, concluding that where the record conclusively refuted the allegations of the motion to withdraw a plea pursuant to Rule 3.170((), the trial court did not err by summarily denying it without appointing additional counsel to represent the appellant.

While defendant was on probation for grand theft, he was arrested for possession of cocaine, which resulted in the filing of an affidavit of violation. At the hearing on the violation, the state made a plea offer which the defendant accepted. His counsel meticulously questioned him on the particulars of the plea and explained to him that he could be sentenced up to ten years in prison for the combined crimes. The court also thoroughly explained the plea to the defendant. Defendant eventually pled to both the violation of probation and to the possession of cocaine, for which the court sentenced him to concurrent sentences of 364 days in custody.

Defendant filed a pro se motion to vacate his plea to the possession of cocaine charge, claiming that counsel coerced him into accepting the plea by telling him that he would be sentenced to five years consecutive to his sentence for the violation of probation. The trial court summarily denied the motion without a hearing. In its order it explained that “[o]nce sentence has been imposed, to withdraw a plea a defendant must demonstrate a manifest injustice requiring correction.” It then concluded that he was required to show that his plea was involuntary and “failed to make such a showing of manifest necessity,” attaching a copy of the plea colloquy transcript to the order. Defendant appeals.

Where a defendant seeks to withdraw a plea after sentencing, the defendant must prove that a manifest injustice has occurred. Snodgrass v. State, 837 So.2d 507, 508 (Fla. 4th DCA 2003); State v. Wiita, 744 So.2d 1232, 1235 (Fla. 4th DCA 1999). This is a more stringent standard than a motion to withdraw a plea filed before sentencing, as the burden falls on the defendant to prove that withdrawal is necessary to correct the manifest injustice. Snodgrass, 837 So.2d at 508. Examples of situations where withdrawal is necessary to correct a manifest injustice include cases where the defendant proves that he received ineffective assistance of counsel or where the defendant’s plea was involuntary. See Williams v. State, 316 So.2d 267, 274 (Fla.1975). Similarly, a defendant’s entry of a plea based upon defense counsel’s misadvice about sentencing can be a basis for allowing a defendant to withdraw the plea. Snodgrass, 837 So.2d at 508.

The defendant argues that his motion stated a facially sufficient claim of coercion through misadvice of defense counsel as to the maximum length of his sentence, and he was entitled to a hearing on the issue. When a defendant files a facially sufficient motion to withdraw plea under rule 3.170(1), due process requires a hearing unless the record conclusively shows the defendant is entitled to no relief. Ragoobar v. State, 893 So.2d 647, 648 (Fla. 4th DCA 2005); Simeton v. State, 734 So.2d 446, 447 (Fla. 4th DCA 1999). However, the plea colloquy itself may conclusively refute a defendant’s allegations that counsel misrepresented the length of time the defendant would serve. See, e.g., Alfred v. State, 998 So.2d 1197 (Fla. 4th DCA 2009). Where the court informs a defendant of his sentencing exposure, a defendant may not reasonably rely on a contrary representation by counsel. See, e.g., Scheele v. State, 953 So.2d 782 (Fla. 4th DCA 2007) (holding that a defendant could not reasonably rely on his lawyer’s alleged advice that he faced a maximum sentence of only ten years where the trial court told the defendant in no uncertain terms that he faced a maximum of twenty-eight years).

A review of the entire plea colloquy conclusively refutes defendant’s allegations that his attorney coerced him by telling him that if he failed to accept the plea offer, he would be sentenced to five years in prison for the cocaine charge. During the plea colloquy, the defense attorney and the court both informed the defendant of the maximum sentences to which he could be sentenced, noting that he could face any sentence up to the maximum of consecutive five-year sentences on the two cases. The trial court also specifically informed him that the length of the sentence was not yet decided. Therefore, he could not have reasonably relied on his counsel’s alleged statement that he would, receive a five-year prison sentence if he did not accept the state’s plea offer, when the trial court told him that the sentence was undetermined.

Defendant also claims that he was entitled to conflict-free counsel to represent him on the motion to withdraw the plea. In Schriber v. State, 959 So.2d 1254 (Fla. 4th DCA 2007), we held that the trial court erred in summarily denying the defendant’s pro se motion to withdraw plea after sentencing without appointing conflict-free counsel after he alleged that his prior counsel led him to enter a guilty plea involuntarily. Although in Schriber we directed the trial court to appoint conflict-free counsel to assist Schriber in drafting his motion and instructed the trial court to thereafter determine whether to summarily deny the motion or to hold an evidentia-ry hearing, the supreme court has announced a new rule regarding appointment of counsel to represent defendants filing pro se motions to vacate pleas. In Sheppard v. State, 17 So.3d 275 (Fla.2009), the court held:

[W]e outline the procedure trial courts should follow when a represented defendant flies a pro se rule 3.170(í) motion based on allegations giving rise to an adversarial relationship such as counsel’s misadvice, misrepresentation, or coercion that led to the entry of the plea. In these narrow circumstances, ... the trial court should hold a limited hearing at which the defendant, defense counsel, and the State are present. If it appears to the trial court that an adversarial relationship between counsel and the defendant has arisen and the defendant’s allegations are not conclusively refuted by the record, the court should either permit counsel to withdraw or discharge counsel and appoint conflict-free counsel to represent the defendant.

Id. at 286-87 (emphasis supplied) (footnote omitted). Thus, the trial court is not required to appoint conflict-free counsel unless both an adversary relationship exists and the defendant’s allegations are not conclusively refuted by the record. While the trial court did not have the benefit of Sheppard and did not hold a hearing to determine adversity between defendant and counsel, the failure to conduct a hearing is at most harmless error, because conflict-free counsel would not be required where defendant’s allegations were conclusively refuted by the record.

For the foregoing reasons, we affirm appellant’s conviction and sentence.

DAMOORGIAN and LEVINE, JJ., concur.


author: MAY, J.

text:
    D.B., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3649.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2010.

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

A juvenile appeals the denial of his motion to suppress after entering a no contest plea to charges of burglary of a dwelling, grand theft, and criminal mischief greater than $1,000. He argues the trial court erred in denying the motion to suppress because he was not given Miranda warnings. We agree and reverse.

The juvenile was originally thought to be a witness to a burglary. A detective interviewed him at his home with his mother present. During that interview, the juvenile provided a name and positive photo identification of a suspect.

That suspect then inculpated the juvenile in the crimes. The juvenile’s mother drove him to the district office for a second interview. The detective brought the juvenile into the five-by-five foot investigation room where he remained alone, but under camera surveillance, while the detective spoke to his mother for sixteen minutes.

The detective testified that he did not provide the juvenile with his Miranda rights at the beginning of the interview because he was listed as a witness. He just “wanted to confirm or deny the allegations made by the co-defendant.”

The court watched a DVD of the interview. It showed the detective telling the juvenile that he had obtained information not previously revealed by the juvenile in the first interview. The detective explained that he already knew what the juvenile did and that he needed to tell the truth.

[W]hen I spoke to you yesterday, you know, I kind of gave you the benefit of the doubt. Okay? I — You know, based on everything ... I wanted to believe you, what you said, and stuff like that. All right? Obviously, things came to light. I found out what you did, what your participation was. Okay? And I’m going to give you an opportunity to tell the truth.
But I want — I want you to do is tell me the truth. Okay? And this is a lesson that you’re going to learn today. By telling the truth, it helps the situation out. When you lie, you can’t take back a lie. And the more you lie, the more in trouble you get. Okay? And that’s something that you’re going to learn today. Okay? So, my advice to you is tell me the truth. I know what you did. Okay? I already learned.
I spoke to [the co-defendant] in here by ... ourselves, just me and him. And he told me what happened. Okay? And obviously I learned some things, things that you didn’t tell me. Okay? And that’s what I want you to do is tell me now. Because ultimately what happens is — How old are you, 10 years old?
Take the punishment. It’s going to be over — Okay? But you’ve got to tell me the truth because right now your mom is ultimately responsible for everything that you do.
Okay. But that’s the way it is. Okay? And if it gets to the point where you’re out of control and you’re incapable of listening to your mother’s directions and ... you don’t abide by the rules— okay? — you get taken away from your mom, you get — you put into a foster home. How would you feel about that?

Following that exchange, the juvenile made incriminating statements.

The trial court denied the motion to suppress because the juvenile “never testified that he believed he was in custody nor did he ever attempt to leave [the] interview room.... ” The juvenile pled no contest to the charges, reserving his right to appeal the ruling on the motion to suppress.

On appeal, the juvenile argues the court erred in denying his motion to suppress because he was not given Miranda warnings. The State responds that Miranda warnings were not warranted because the juvenile was not in custody at the time of the interview.

“The question of whether a suspect is in custody is a mixed question of law and fact.” Ramirez v. State, 739 So.2d 568, 574 (Fla.1999). The “in custody” requirement under Miranda is subjected to de novo review, accepting the court’s factual findings if supported by competent, substantial evidence. See C.A.M. v. State, 819 So.2d 802, 804 (Fla. 4th DCA 2001) (quoting State v. Glatzmayer, 789 So.2d 297, 301 n. 7 (Fla.2001)).

Miranda warnings are required when an individual is interrogated while in custody. Meredith v. State, 964 So.2d 247, 250 (Fla. 4th DCA 2007). “The ultimate inquiry is whether ‘a reasonable person placed in the same position would believe that his or her freedom of action was curtailed to a degree associated with actual arrest.’ ” Id. (quoting Ramirez, 739 So.2d at 573).

Four factors guide the determination of whether a suspect is in custody.

(1) the manner in which the police summon the suspect for questioning; (2) the purpose, place, and manner of the interrogation; (3) the extent to which the suspect is confronted with evidence of his or her guilt; (4) whether the suspect is informed that he or she is free to leave the place of questioning.

Ramirez, 739 So.2d at 574. Applying the four-part test to our facts, we find the juvenile was “in custody.”

First, the detective asked the juvenile’s mother to bring him to the district office. The mother drove the juvenile to the second interview, which took place in a small room, under camera surveillance, without the presence of the juvenile’s mother.

Second, the purpose, place, and manner of the interrogation support a finding that the juvenile was “in custody.” The purpose of the interview was to obtain incriminating responses. The interview took place at the district office. Prior to the interview, the juvenile was placed in a five-by-five foot interrogation room and left alone with the door closed, under camera surveillance, while the detective spoke with his mother for sixteen minutes. When the detective entered the room, he advised the juvenile that his mother wanted him to tell the truth.

The detective repeatedly told the juvenile that he knew what he had done because he had been told by the co-defendant. The detective told him that he had failed to reveal information during the first interview and he could tell the juvenile was lying. The detective even indicated that he knew the juvenile was probably scared. And, the detective essentially threatened the juvenile with placement in a foster home if he was considered out of control. The manner of this interrogation was accusatory, insistent, and coercive.

Third, the juvenile was repeatedly confronted with evidence of guilt. The detective told the juvenile that he already learned about his participation in the crime from the co-defendant. While the detective did not reveal details, he basically told the juvenile that he had not been truthful during the first interview, accused him of lying, knew he had been involved, and demanded the truth.

Fourth, the detective never informed the juvenile that he was free to leave. In fact, the circumstances militated against any thought that the juvenile was free to leave. The juvenile was placed into a small interrogation room alone under camera surveillance while the detective spoke to his mother. He was never advised of his ability to leave or his ability not to answer questions. After the interview, the detective left the juvenile in the room for a considerable amount of time. And, the DVD showed the juvenile repeating to himself, “Get me out of here; get me out of here.”

Under the totality of the circumstances, a reasonable eleven-year-old child would not believe he was free to leave. See Lee v. State, 988 So.2d 52, 56 (Fla. 1st DCA 2008). The juvenile was “in custody” for Miranda purposes. See B.M.B. v. State, 927 So.2d 219, 222 (Fla. 2d DCA 2006). The trial court’s reliance on the juvenile’s failure to request to leave placed undue emphasis on only one factor, and failed to take into account the totality of the circumstances.

Because we find the juvenile to have been “in custody,” Miranda warnings were required. The failure to provide them requires suppression of the juvenile’s statements. We reverse the order denying the motion to suppress and remand the case to the trial court to vacate the disposition order and plea.

Reversed and remanded.

FARMER and HAZOURI, JJ., concur.

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