Florida Criminal Law Opinions

Bill McCollum, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appellant.

Philip J. Massa, Regional Counsel, and Melanie L. Casper, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellee.

Gerber, J.

The state nolle prossed a felony charge against a defendant and then refiled the charge two days later. The state attempted to notify the defendant of the refiled charge before the speedy trial period expired, but the defendant did not receive actual notice of the refiled charge until after the speedy trial period expired. Because the defendant did not receive actual notice of the refiled charge until after the speedy trial period expired, the circuit court granted the defendant’s request for discharge. From that order, the state appeals. We reverse, holding that when the state sufficiently attempts to notify a defendant of a refiled charge before the speedy trial period expires, the state is entitled to Florida Rule of Criminal Procedure 3.191(p)’s recapture period, even if the defendant does not receive actual notice of the refiled charge until after the speedy trial period expires.

The record reveals the following timeline of material events:

June 1, 2007: The police arrest the defendant for a felony.

Sept. 6, 2007 to Feb. 14, 2008: The defendant requests, and the circuit court grants, five continuances.

May 7, 2008: The defendant files a demand for speedy trial pursuant to Florida Rule of Criminal Procedure 3.191(b), which requires that a defendant be brought to trial within sixty days of the demand.

May 19, 2008: The state requests, but the circuit court denies, a continuance. The state immediately nolle prosses the case.

May 21, 2008: The state refiles the charge against the defendant.

Page 2

June 27, 2008: The clerk mails a notice of arraignment to the defendant at the address he gave when he was arrested.

However, apparently unbeknownst to the state or the clerk, the defendant had moved to a new address.

July 7, 2008: The clerk’s notice is returned unserved. On the same day, the speedy trial period expires.

July 11, 2008: The defendant does not appear for arraignment. The circuit court issues a capias.

Sept. 12, 2008: The police arrest the defendant on the capias, thereby notifying the defendant of the refiled charge’s existence.

Following his arrest, the defendant filed a notice of expiration of speedy trial. The notice requested a discharge pursuant to State v. Agee, 622 So. 2d 473 (Fla. 1993). In Agee, our supreme court stated:

[Florida Rule of Criminal Procedure 3.191] makes clear that the State cannot circumvent the intent of the rule by suspending or continuing the charge or by entering a nol pros and later refiling charges:

[h](2) Nolle Prosequi; Effect. The intent and effect of this Rule shall not be avoided by the State by entering a nolle prosequi to a crime charged and by prosecuting a new crime grounded on the same conduct or criminal episode, or otherwise by prosecuting new and different charges based on the same conduct or criminal episode whether or not the pending charge is suspended, continued, or is the subject of entry of a nolle prosequi.

Fla. R. Crim. P. 3.191(h)(2).¹ To allow the State to unilaterally toll the running of the speedy trial period by entering a nol pros would eviscerate the rule….

622 So. 2d at 475.

The circuit court held a hearing on the request for discharge. The state argued, among other things, that Agee was distinguishable because, in Agee, there was no mention of any attempt to notify the defendant of the refiled charge before the speedy trial period expired, whereas in this case the state attempted to notify the defendant of the refiled charge before the speedy trial period expired through the clerk’s

Page 3

notice of arraignment sent to the address which the defendant gave when he originally was arrested. According to the state, because of that distinction, it was entitled to the recapture period contained in rule 3.191(p), which provides:

No later than 5 days from the date of the filing of a notice of expiration of speedy trial time, the court shall hold a hearing on the notice and, unless the court finds that one of the reasons set forth in subdivision (j) exists, shall order that the defendant be brought to trial within 10 days. A defendant not brought to trial within the 10-day period through no fault of the defendant, on motion of the defendant or the court, shall be forever discharged from the crime.

Fla. R. Crim. P. 3.191(p)(3) (2008).

The defendant did not question the fact that the state sought to notify him of the refiled charge through the clerk’s notice of arraignment sent to his previous address before the speedy trial period expired. Nor did the defendant question the fact that the notice was returned unserved. The defendant instead argued that the address he gave at the time of his original arrest was not a “bad” address. The defendant further argued that, after the state nolle prossed the original charge, he had no obligation to tell the court of his new address.

The court granted the discharge. In reaching its decision, the court stated that it did not read Agee as entitling the state to a recapture period. The court found that, once the state nolle prossed the original charge, the defendant was under no obligation to provide the court with any address, and it was the state’s obligation to notify the defendant of the refiled charge before the speedy trial period expired. According to the court, the fact that the clerk’s notice of arraignment was returned proved that the state did not notify the defendant of the refiled charge before the speedy trial period expired.

This appeal followed. The state argues that the circuit court erred in granting the discharge for two reasons: (1) the defendant requested continuances and, therefore, waived his right to a speedy trial; and (2) the state is entitled to the recapture period provided in rule 3.191(p). Our standard of review for these arguments is de novo. See State v. Nelson, 26 So. 3d 570, 573-74 (Fla. 2010) (interpretation of the rules of procedure regarding the right to a speedy trial is a question of law subject to de novo review).

Page 4

We reject the state’s first argument that the defendant requested continuances and, therefore, waived his right to a speedy trial. The state did not raise this argument to the trial court and, thus, did not preserve the argument for appeal. See State v. Calvert, 15 So. 3d 946, 948 (Fla. 4th DCA 2009) (state did not properly preserve issue for appellate review where it did not assert the issue as the legal ground for the objection to the trial court).

Even if the state had preserved its first argument, the argument is without merit. The state relies on our opinion in Banks v. State, 691 So. 2d 490 (Fla. 4th DCA 1997), for the general rule that a defense request for continuance waives the speedy trial time and the defendant’s right to discharge. Id. at 491. However, Banks did not involve a defendant who, after waiving his speedy trial rights, later demanded a speedy trial, as occurred here. That distinction is significant because, in Banks, we noted that after a defendant waives his right to a speedy trial, the defendant at all times has available the speedy trial by demand remedy provided under rule 3.191. Id. at 492. Thus, the fact that the defendant here originally waived his right to a speedy trial is irrelevant.

We agree, however, with the state’s second argument that it is entitled to rule 3.191(p)’s recapture period. As the state argued to the circuit court, Agee is distinguishable because, in Agee, there was no mention of any attempt to notify the defendant of the refiled charge before the speedy trial period expired, whereas in this case the state attempted to notify the defendant of the refiled charge before the speedy trial period expired. We find that distinction to be significant. We hold that, where the state sufficiently attempts to notify a defendant of a refiled charge before the speedy trial period expires, the state is entitled to the recapture period, even if the defendant does not receive actual notice of the refiled charge until after the speedy trial period expires. “If we were to hold otherwise, an accused could intentionally avoid service of process until after the expiration of the speedy trial period and, by doing so, avoid prosecution by defeating the State’s right to the recapture period.” State v. B.S.S., 890 So. 2d 487, 490 (Fla. 5th DCA 2004).

Our holding that the state is entitled to the recapture period if it sufficiently attempts to notify a defendant of a refiled charge before the speedy trial period expires is consistent with our recent rejection of a defendant’s argument that nothing short of actual service of a summons or formal arrest on a refiled charge is sufficient notice. Thompson v. State, 1 So. 3d 1107, 1111 (Fla. 4th DCA 2009). As we held in Thompson, “the speedy trial rule contains no such requirement.” Id. (citing State v. Savitch, 925 So. 2d 482, 483 (Fla. 4th DCA 2006) and

Page 5

State v. McCullers, 932 So. 2d 373, 376 (Fla. 2d DCA 2006)).² Our holding also is consistent with our dicta from Savitch in which we recognized that “there is no requirement of notice” in rule 3.191. Savitch, 925 So. 2d at 483 n.1. See also B.S.S., 890 So. 2d at 490 (“The fact that Appellee was not immediately served is of no import.”).

Our holding is distinguishable from those cases holding that a defendant is entitled to a discharge where there is no evidence that the state attempted to notify the defendant of the refiled charges before the speedy trial period expired, especially where the defendant resided at the same address at all relevant times. See, e.g., Cordero v. State, 686 So. 2d 737, 737-38 (Fla. 3d DCA 1997) (after the state refiled charges against the defendant, it took no further action until the defendant was arrested after the speedy trial period expired even though the defendant resided at same address and did not attempt to avoid arrest or notification of the refiled charges); State v. Morris, 662 So. 2d 378, 378-79 (Fla. 4th DCA 1995) (the state failed to do anything which would have put the defendant on notice of the refiled charge even though the defendant was living at the address the state had for him). Here, the state attempted to notify the defendant of the refiled charge before the speedy trial period expired, but the state was unable to do so because the defendant moved to a new address.

We recognize that determining what constitutes a “sufficient” attempt to notify a defendant of a refiled charge before the speedy trial period expires will require case-by-case factual determinations. However, we believe that such determinations are required to balance the interests of justice between the state and defendants. Compare Puzio v. State, 969 So. 2d 1197, 1202 (Fla. 1st DCA 2007) (“Notifying a defendant that charges have been filed against him is essential, not only to his due process rights, but to his ability to exercise his speedy trial rights.”) with B.S.S., 890 So. 2d at 490 (if actual notice were required before the speedy trial period expires, an accused could intentionally avoid service of process until after the expiration of the speedy trial period and, by doing so, avoid prosecution). Such case-by-case determinations should be no more burdensome than the “exceptional circumstances” determinations which the speedy trial rule already prescribes for extensions of time periods under the rule. See Fla. R. Crim. P. 3.191(i)(2), (l).

On the facts of this case, we find that the state sufficiently attempted to notify the defendant of the refiled charge before the speedy trial period

Page 6

expired. As mentioned above, the state attempted to notify the defendant of the refiled charge through the clerk’s notice of arraignment sent to the address which the defendant gave when he originally was arrested. Apparently unbeknownst to the state or the clerk, the defendant had moved to a new address. At the hearing before the circuit court, the defendant did not argue that the state’s method of attempted service was improper. The defendant instead argued that the address he gave at the time of his original arrest was not a “bad” address, and that after the state nolle prossed the original charge, he had no obligation to tell the court of his new address. Given these facts, we find that the state sufficiently attempted to notify the defendant of the refiled charge before the speedy trial period expired. See Thompson, 1 So. 3d at 1110-11 (affirming the denial of the defendant’s motion for discharge of a refiled charge where, among other things, the state mailed the defendant a notice to appear for arraignment on the refiled charge).

This cause is remanded to the circuit court with directions to provide the state with the recapture period, to be measured from the date we issue our mandate in this case.

Reversed and remanded.

Stevenson and Hazouri, JJ., concur.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Matthew I. Destry, Judge

——–

Carey Haughwout, Public Defender, and Paul E. Petillo, 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.

Levine, J.

The issue presented is whether the trial court erred in denying the appellant’s motion for new trial, where a juror used a smartphone during a break in jury deliberations to look up the definition of “prudent,” a term used in the jury instructions and during closing arguments. We find that it was error to deny the motion, and the appellant is entitled to a new trial.

The appellant was charged by indictment with first-degree murder and convicted of manslaughter after a jury trial. The victim and his family moved to the appellant’s neighborhood in September 2006. The appellant stopped by the victim’s house to introduce himself and welcome the victim to the area. Later that night, the victim woke his mother and her fiance to tell them that the appellant had pulled a gun on him while he was walking his dog. The victim called his mother during the confrontation, and the state, over objection, played the recording of the confrontation from the mother’s voicemail.

The victim’s mother and fiance convinced the victim not to call the police to report the confrontation. The victim then drove to the appellant’s house and pulled into his driveway. The victim honked the car horn and then knocked on the appellant’s front door. The victim’s family followed the victim to the appellant’s house. The victim’s sister heard the victim say, “[Y]ou have a gun behind there, don’t you.” At that point, the appellant stepped out carrying a rifle and pointed it at the victim. The appellant and victim exchanged words, and then there was a flash and a shot fired. The victim was no longer standing. The appellant

Page 2

took two steps forward, lowered the gun, and fired again. The victim sustained two gunshots, including a fatal wound to his abdomen.

After the police arrived, the appellant gave a statement after being read his Miranda rights. The appellant told the police that he encountered the victim while the victim was walking his dog with a beer bottle in his hand. The appellant asked the victim what he was doing in front of the appellant’s driveway. The victim said he was the new neighbor. The appellant could smell alcohol on the victim’s breath. The appellant told the victim that he was glad a neighbor was walking a dog at night, due to the crime in the neighborhood. At that point, the victim asked if the appellant thought the victim was “going to be in control here” and whether the appellant was afraid of him. The victim asked if the appellant had a gun, and the appellant said he had a gun in his house. The victim accused the appellant of threatening him and informed the appellant that he knew martial arts. The victim told the appellant to “go back to Cuba” and threatened to call the police. The appellant told the victim to get off his property. The victim at this point “pushe[d]” the appellant in “the mouth” and threw a beer bottle at him.

The appellant did not call the police after the victim left. The appellant claimed that, from his house, he heard the victim in his own house yell, “[H]e’s dead meat, how could he dare to threaten me, I am going to kill him.” When the victim pulled his vehicle in the appellant’s driveway, the appellant retrieved his shotgun. The victim banged on the appellant’s front door, threatening to kill him. The victim told the appellant to open the door or he would shoot it down. The appellant opened the door a bit and told the victim to go away. The appellant claimed that the victim had a gun and claimed the victim said he did not care whether he lived or died. When the victim moved, the appellant shot him. The appellant shot the victim again, because he was not “sure of where or how [he] shot him.” The appellant claimed that the victim’s family must have taken the victim’s gun from the scene. The victim’s family denied taking any gun and denied the accusation that the victim made any threats regarding the appellant.

Detective Bianchi testified that the appellant’s door to his home was solid and in good shape. The testimony of the detective, based on his prior construction work, was admitted over the appellant’s objection. The defense subsequently introduced an investigator who testified that there was damage to the door frame and the door could easily be pried opened within “seconds.”

The appellant testified at trial about his initial encounter with the

Page 3

victim in the early morning hours. The appellant let the victim believe that the waistband that the appellant wore for back problems was a gun. Later, when the victim returned to the appellant’s house, the appellant retrieved his gun when the victim got out of his car. The appellant’s only thought was to protect himself. The victim “started banging on the door,” yelling, “[Y]ou threatened me, I’m going to kill you, open the door, I know you are there.” The victim hit the appellant’s hand with “something heavy, metal.” The appellant, in response, pointed his gun at the victim. The victim’s hands were not visible, and the appellant shot him when the victim moved his elbow up and said, “I don’t care if I live or die but you are dead.”

The appellant was convicted of manslaughter with a firearm, a lesser included offense. After the appellant was convicted, a juror contacted defense counsel and claimed that during a break from jury deliberations, the jury foreperson used a smartphone, specifically an iPhone, to look up the definition of “prudence.” The court granted a motion to interview jurors and determined, after an evidentiary hearing, that there was juror misconduct based on the fact that the jury foreperson utilized his smartphone to search an internet site, Encarta, for the definition of “prudent” or “prudence.” The foreperson shared this definition with other jurors during deliberations. At the hearing, the foreperson testified that he did not bring the smartphone physically into the jury room, but he shared the definition that he remembered basically as meaning “careful and sensible, with care to consequences.” Many of the other jurors who testified at the hearing remembered another juror sharing the definition of “prudent.” The court found that the misconduct was compounded by the foreperson sharing the definition with other jurors. The trial court concluded, nevertheless, that the juror misconduct was harmless and denied the appellant’s motion for new trial.

The standard of review of a trial court’s denial of a motion for new trial on the grounds of juror misconduct is abuse of discretion. State v. Hamilton, 574 So. 2d 124, 126 (Fla. 1991). “A new trial could be warranted if the jurors considered unauthorized materials affecting their verdict.” Bush v. State, 809 So. 2d 107, 115-16 (Fla. 4th DCA 2002). Juror misconduct gives rise to a rebuttable presumption of prejudice. James v. State, 843 So. 2d 933, 937 (Fla. 4th DCA 2003).

In this case, the trial court found the utilization of the smartphone to access Encarta to look up the definition of “prudent” was juror misconduct. Using Encarta to access a dictionary is, of course, no different than utilizing a bound dictionary. A dictionary is not one of the materials permitted to be taken into the jury room. Smith v. State, 95 So.

Page 4

2d 525, 528 (Fla. 1957); Greenfield v. State, 739 So. 2d 1197 (Fla. 2d DCA 1999) (citing Fla. R. Crim. P. 3.400). Thus, a dictionary cannot be considered by the jurors. The fact that the foreperson utilized the smartphone to look up the definition of the word during a break and later shared his recollection of the definition with other jurors during deliberations is no less a juror misconduct than if the foreperson physically brought the smartphone into the jury room and read the definition therefrom.

“Once… juror misconduct is established by juror interview, the moving party is entitled to a new trial unless the opposing party can demonstrate that there is no reasonable possibility that the juror misconduct affected the verdict.” Norman v. Gloria Farms, Inc., 668 So. 2d 1016, 1020 (Fla. 4th DCA 1996). It is true that the mere presence of unauthorized material in the jury room is not per se reversible error. Hamilton, 574 So. 2d at 126. In Hamilton, the Florida Supreme Court found the presence of automobile magazines resulted in slight or nonexistent prejudice to the defendant because they were irrelevant to both the legal and factual issues in the case.

In the present case, looking up the definition of “prudent” could hardly be considered irrelevant to the legal and factual issues in this case. The word “prudent” was mentioned in the jury instructions given by the trial court. The state mentioned the term repeatedly during closing argument. The facts of this case center on whether the appellant acted in a “prudent” manner by his actions when confronted by the victim at his front door and whether the appellant should have called 911 instead of opening the door. The concept of “prudence” is one that could be key to the jury’s deliberations. At the very least, we cannot say that there is no reasonable possibility that the juror’s misconduct, by utilizing the smartphone to retrieve the definition of “prudence,” did not affect the verdict in this case.

This result is consistent with that of other courts which, for many years, have reversed convictions for the improper utilization of dictionaries. See Smith, 95 So. 2d at 528; Grissinger v. Griffin, 186 So. 2d 58 (Fla. 4th DCA 1966); Jordan v. Brantley, 589 So. 2d 680 (Ala. 1991) (finding prejudice where foreperson used a dictionary to look up meaning of “prudent” and “reasonable” and discussed the meanings with other jurors); Alvarez v. People, 653 P.2d 1127, 1130-32 (Colo. 1982) (finding prejudice where a juror looked up the words “reasonable,” “imaginary,” and “vague” and shared the definitions with another juror).

As to the other issues raised by the appellant, we find no error. With

Page 5

respect to the refusal to give special jury instructions, we find that the trial court committed no error since “standard jury instructions are presumed correct and are preferred over special instructions.” Lynch v. State, 829 So. 2d 371, 375 (Fla. 4th DCA 2002) (quoting Stephens v. State, 787 So. 2d 747, 755-56 (Fla. 2001)). We also find the trial court did not abuse its discretion by admitting an unintentionally taped conversation between the appellant and victim. See Nardone v. State, 798 So. 2d 870, 874 (Fla. 4th DCA 2001); Otero v. Otero, 736 So. 2d 771 (Fla. 3d DCA 1999) (concluding that a taped conversation was properly admitted into evidence where the taping occurred accidently, not intentionally). Finally, the failure to conduct a Richardson¹ hearing regarding the testimony of Detective Bianchi is moot because we are remanding this case for a new trial.

Although here we confront new frontiers in technology, that being the instant access to a dictionary by a smartphone, the conduct complained of by the appellant is not at all novel or unusual. It has been a longstanding rule of law that jurors should not consider external information outside of the presence of the defendant, the state, and the trial court. Based upon the facts of this case, and the key concern of the appellant’s conduct, we cannot say that the intrusion of the definition of “prudent” into the jury deliberations did not affect the jury verdict, and as such we are compelled to reverse and remand.

Reversed and remanded for a new trial.

Stevenson and Damoorgian, JJ., concur.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Charles E. Burton, Judge; L.T. Case No. 06CF012244AMB.

——–

Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.

Damoorgian, J.

Defendant, Shara Cooper, appeals her conviction and sentence for second-degree murder with a firearm, first-degree arson, grand theft (motor vehicle), and grand theft (firearm). Defendant raises two issues for our review. Finding no merit to defendant’s arguments, we affirm her conviction and sentence.

By way of background, defendant and the victim, Samuel Norris, were romantically involved and lived together. At some point defendant discovered that Norris was being unfaithful to her. This prompted defendant to arrange for the theft of Norris’ truck and his gun. During the course of arranging for the theft, defendant contacted the police and met with an officer at her apartment regarding a break-in through her bedroom window. Defendant claimed to be sleeping during the break-in. Thereafter, defendant contacted the apartment property manager in order to have the window opening secured. That same day, a maintenance worker entered the apartment to place a piece of plywood over the broken window. While working inside the bedroom, the maintenance worker saw a male figure lying on his back on the master bed with his feet extended over the edge of the bed. With the exception of his ankles and feet, the individual on the bed was covered with black sheets. Despite creating noise by exiting and re-entering the apartment, and securing the plywood cover over the window opening by drilling screws through the wood and into the wall, the maintenance worker never observed the individual under the sheets move or change position. Defendant, who was present while the repair was being performed, advised the maintenance worker that the man in the bed was sleeping.

Page 2

Later that evening, the police responded to a fire in defendant’s apartment. After breaching the front door of the apartment, officers and firefighters discovered Norris lying face down on the ground in the master bedroom. Norris was extensively burned, lifeless, and did not have any clothes on his body. After a detailed investigation, the police determined that the fire was intentionally started and that its origin was the master bed. The investigation also revealed that the cause of Norris’ death was a gunshot wound to the head and that there was no indication that Norris was alive during the fire.

During questioning by the police, defendant stated that Norris’ killer was her friend, Earl Burgess. After the State concluded its investigation, defendant was indicted for first-degree murder with a firearm, firstdegree arson, grand theft (motor vehicle), and grand theft (firearm).

At trial, the State sought to introduce defendant’s wireless telephone records through the expert testimony of a store manager with Verizon Wireless. The purpose behind introducing the wireless phone records was to establish defendant’s location on the date and time the crimes were committed. The State’s expert testified that he was: (a) responsible for monitoring and managing different Verizon retail stores; (b) trained and experienced in the operation of a cell phone, data servicing, records processing, and customer, billing, and technical support; and (c) knowledgeable in matters relating to call records and the transmission of customer calls through Verizon’s network. He also testified that Verizon maintained call records in the normal course of business and described how customer calls traveled through its system. With this information, the expert explained that, when a customer places a phone call, the call connects to a nearby tower location and then transmits to a switching station where a call record is stored at the time the call is made.

Before the admission of defendant’s telephone records, defense counsel argued that the expert was not qualified to testify as to how Verizon maintained the records. Defense counsel further contended that the witness did not know if the records were contemporaneously made with a telephone call. In response, the State argued that the expert testified that the call records were maintained when phone calls were made and that, although he did not understand the electronic process involved in maintaining call records, an information technologist is not necessary to introduce the records into evidence. The trial court agreed with the State, finding that the witness was able to testify as to Verizon’s maintenance and preparation of its call records. The court concluded that the State provided a sufficient predicate to allow the introduction of the records into evidence.

Page 3

On appeal, defendant argues that the trial court erred in admitting her wireless phone records into evidence because the State’s expert was not a qualified witness. We disagree.

“The admissibility of evidence is within the sound discretion of the trial court, and the trial court’s determination will not be disturbed on appellate review absent a clear abuse of that discretion.” Brooks v. State, 918 So. 2d 181, 188 (Fla. 2005); see also LEA Indus., Inc. v. Raelyn Int’l, Inc., 363 So. 2d 49, 52 (Fla. 3d DCA 1978) (“[I]t lies within the trial court’s discretion to determine whether admission of… business records is justified.”).

Business records are admissible if a records custodian or other qualified witness testifies that the record

[(1)] was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record.

Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008); see also Walls v. State, 977 So. 2d 802, 803 (Fla. 4th DCA 2008).

The proponent of the evidence need not call the person who actually prepared the business records in order to lay a foundation for admitting the records into evidence. Mann v. State, 787 So. 2d 130, 135 (Fla. 3d DCA 2001); see also Specialty Linings, Inc. v. B.F. Goodrich Co., 532 So. 2d 1121, 1121 (Fla. 2d DCA 1988) (“‘In order to prove a fact of evidence of usual business practices, it must first be established that the witness is either in charge of the activity constituting the usual business practice or is well enough acquainted with the activity to give the testimony.’” (quoting Alexander v. Allstate Ins. Co., 388 So. 2d 592, 593 (Fla. 5th DCA 1980))).

In the instant case, the State’s expert was a qualified witness given his position as a store manager and training and experience in (a) phone servicing; (b) the transmission process of phone calls through Verizon’s network; (c) records maintenance; (d) data servicing; and (e) customer, billing, and technical support. Even though the expert was not individually responsible for maintaining Verizon’s records, he was trained in the procedures for maintaining business and billing records and testified that Verizon maintained its records on a regular basis, in the

Page 4

ordinary course of business, and as phone calls traveled throughout its network. The expert also explained the process of how phone calls connect to network towers and switching stations, which is where call records are electronically maintained at the time in which calls are made. In other words, he described the interplay of Verizon’s towers and switching stations when phone calls are made and transmitted through Verizon’s network. The expert’s knowledge of and familiarity with Verizon’s business practices met the four-part test enunciated in Yisrael. See Yisrael, 993 So. 2d at 956; Specialty Linings, Inc., 532 So. 2d at 1121. Accordingly, the trial court did not abuse its discretion in permitting the State’s expert to testify as to how Verizon maintains and prepares its records and in admitting defendant’s wireless phone records into evidence.

Next, defendant argues that the trial court abused its discretion by excluding her “reverse Williams rule”¹ evidence. Prior to trial, defendant filed a notice of intent to rely on evidence of similar crimes, arguing that (a) Earl Burgess previously murdered a person named Charles Mixon in 1993 with a firearm and (b) Burgess pled guilty to manslaughter for this crime. Defendant noted that the victim in this case and in Burgess’ case (a) were both black males, (b) were both shot and left in a prone position on the ground face down, (c) were both left beside a bed, (d) were both shot in the upper portion of their bodies with a small caliber projectile, (e) were both killed with a single shot, and (f) were both involved with drugs. The trial court sustained the State’s objection to the admission of this evidence.

Relevancy is the test for admissibility of reverse Williams rule evidence:

In State v. Savino, 567 So. 2d 892 (Fla. 1990), the Supreme Court of Florida stressed the importance of relevancy and further stated: “When the purported relevancy of past crimes is to identify the perpetrator of the crime being tried, we have required a close similarity of facts, a unique or ‘fingerprint’ type of information, for the evidence to be relevant…. If a defendant’s purpose is to shift suspicion from himself to another person, evidence of past criminal

Page 5

conduct of that other person should be of such nature that it would be admissible if that person were on trial for the present offense.”

Traina v. State, 657 So. 2d 1227, 1228-29 (Fla. 4th DCA 1995) (quoting Savino, 567 So. 2d at 894 (citations omitted)); see also Simpson, 3 So. 3d at 1145 n.6 (stating the reverse Williams rule test as presented in Traina and Savino).

In the instant case, although Norris was found face down on a floor next to a bed, like the victim in Burgess’ case, the gunshot wound in Burgess’ case was in the victim’s shoulder. Moreover, in this case, arson was used to cover-up Norris’ cause of death. The similar fact evidence here was overly general and did not meet the “close similarity of facts, a unique or ‘fingerprint’ type of information” test for relevancy as described in Traina and Savino. See Peek v. State, 488 So. 2d 52, 55 (Fla. 1986) (noting, in a traditional Williams rule case, that “‘[a] mere general similarity will not render the similar facts legally relevant to show identity[]‘” and that “‘[t]here must be identifiable points of similarity which pervade the compared factual situations.’” (quoting Drake v. State, 400 So. 2d 1217, 1219 (Fla. 1981))); see also Vaughn v. State, 604 So. 2d 1272, 1273 (Fla. 4th DCA 1992) (“The similar aspects or modus operandi of the incidents must be sufficiently distinctive, unique, unusual, or of such special character as to reasonably point to the defendant as the perpetrator of both offenses.”). Simply put, the dissimilarities of these cases are greater than their similarities.

Accordingly, we hold that the trial court did not abuse its discretion by not permitting defendant to introduce similar fact evidence of Earl Burgess’ 1993 crime. See Traina, 657 So. 2d at 1229; Olsen v. State, 751 So. 2d 108, 111-12 (Fla. 2d DCA 2000); Kimbrough v. State, 700 So. 2d 634, 637 (Fla. 1997); Rivera v. State, 561 So. 2d 536, 540 (Fla. 1990) (holding that the trial court did not abuse its discretion in excluding reverse Williams rule evidence because the only alleged similarities were that both victims “were riding bicycles when they were abducted; they were both asphyxiated; their bodies were found in the same general area; and pantyhose was discovered in the vicinity of their bodies.”).

Affirmed.

Farmer and Levine, JJ., concur.

* * *

Page 6

Appeal and cross-appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Krista Marx, Judge

——–

Howard Finkelstein, Public Defender, and Diane M. Cuddihy, Assistant Public Defender, Fort Lauderdale, for petitioner.

Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for respondent.

Per Curiam.

This is a petition for writ of prohibition, filed by a child with approximately nine delinquency proceedings pending below, seeking to prohibit Broward County Circuit Court Judge Steven B. Feren from further participating in his pending cases. Judge Feren denied all of the motions for disqualification of judge filed by the juvenile as untimely in part and as legally insufficient in part. We grant the petition.

All the motions were timely filed on April 23, 2010, from statements made by Judge Feren on April 13, 2010. Discussing the number of cases another child had pending, apparently eleven, the judge said, “Okay. This is what they meant when they taught us about the weight of the evidence?… Eleven files on one side. Getting pretty weighty.” (Emphasis added). According to the motions, the court “gestured as if it were holding the scales of justice and lowered the scale when it said ‘getting pretty weighty.’” The petitioner was concerned that Judge Feren believes a child who is charged in more than one case is more likely to be guilty, based on the multiple cases pending, and that having multiple cases constitutes evidence against the child. The child feared he would not get a fair trial, as the court’s statements and gestures suggested it was not the evidence introduced at trial or at a violation of probation hearing, but the number of pending files that would determine whether the child was guilty.

With respect to the juvenile’s interpretation of the April 13th remark, he had been advised by counsel of statements Judge Feren made in open court on May 28, 2009, implying that the judge would punish a child

Page 2

with multiple cases for maintaining his or her innocence. According to the motions, Judge Feren expressed his opinion that when a child has multiple cases, it is a waste of the judge’s time for the child to proceed to trial on any one charge and plea out the remainder of the cases. The trial judge reasoned the sanction imposed in those cases that were pled would be the same as the penalty imposed in the case that was tried. The trial judge concluded by stating that he did not see why he had to spend time on a trial when it would not matter to the child in terms of the sanction imposed. Judge Feren admitted he could see why a child might not want a particular charge on his or her record, or a felony as opposed to a misdemeanor, though he minimized the importance of the difference, stating “not all of the felonies ultimately matter down the road. There’s really no difference between a grand theft and a petit theft withheld. It’s still going to be a theft one way or the other. Doesn’t make a difference.” The judge instructed defense counsel to explain why, in such cases, he should not be upset that a child is going to trial, reiterating it was a waste of time to take one case to trial just because counsel believes it is a winner.

Other comments at that hearing suggested the judge would punish a child for maintaining his or her innocence by adjudicating the child if found guilty after trial, and imposing any sentence consecutive to that imposed following a plea:

You have to explain to them though, that if they go to trial on that case and they lose, I’m going to adjudicate them, which is going to be a more significant blot on their record than, you know, a withheld along with a bunch of other withhelds is going to be, and that I’m probably going to give them some punishment over and above what they might later plead to…. I’m not going to do it concurrent because the child took his chances, went to trial, I found him guilty, and he has to do a separate punishment on that in my mind as opposed to the other cases where the court is giving him what’s agreed to between the parties as an expediency because the child is pleading no contest and the court doesn’t know whether the child is guilty or not guilty. (Emphasis added).

Based on the foregoing statements, R.V. maintained he had a wellfounded fear that Judge Feren was prejudiced against him and he would not receive a fair trial or, if found guilty, adjudication hearing.

The trial court denied all the motions in a single order. With respect

Page 3

to the comments made on May 28, 2009, the court noted they were previously raised in motions which the judge had denied as untimely, and the petition for writ of prohibition seeking review of that ruling was denied on the merits in E.L.W. v. State, No. 4D09-2936 (Fla. 4th DCA Aug. 4, 2009) (unpublished order). With respect to the comments made on April 13, 2010, the court found the motions to be legally insufficient. All the motions were denied as legally insufficient in part and as untimely in part.

R.V. filed a petition for writ of prohibition with this court, arguing that Judge Feren’s comment regarding the great weight of the evidence, coupled by his hand gesture of lowering one side of an imaginary scale when stating “getting pretty weighty,” would lead a reasonable person to believe the court was not going to judge each of his cases individually and instead would consider the number of pending cases in determining the child’s guilt or innocence. He also argues that the judge’s cumulative statements may be considered in determining the reasonableness of the child’s fear.

The State argues in its response that a movant’s subjective fears or speculation are not reasonably sufficient ones, citing Moore v. State, 820 So. 2d 199, 206 (Fla. 2002) (citing Arbelaez v. State, 775 So. 2d 909 (Fla. 2000)). It disagrees that the judge’s April 13 statement, about the weight of the numerous files, would lead a reasonable person to believe that the court would not judge each case individually, but would take the number of cases into account in determining guilt or innocence, or that the statement reflected a bias against juveniles with multiple pending cases. The State points out that a court conducting a trial has only the evidence before it with which to make a determination of guilt. That, however, is just the point; the number of cases an accused has cannot be considered in weighing the evidence in any single case; that would be like relying on the number of cases to show the child’s propensity to commit offenses.

With respect to the “untimely” set of comments, the State views the juvenile’s allegations as an attempt to bootstrap the untimely comments onto the insufficient timely ones and argues that the petitioner’s current fear cannot be based on comments made nearly a year earlier.

We conclude that, even without the May 28 statements, the April 13 statements alone suggested that the trial court, who would be the fact finder in the upcoming juvenile proceedings, would consider the number of cases pending against a child as evidence against him in determining his guilt in any one case. The prior comments cannot be used as a timely basis for disqualification, but we see no reason why they cannot

Page 4

inform a petitioner’s understanding of the comments from which the motion for disqualification was timely filed.

Petition Granted.

Warner, Stevenson and Damoorgian, JJ., concur.

Petition for writ of prohibition to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Steven B. Feren, Judge; L.T. Case Nos. 08-7822 DL, 09-6873 DL, 09-10285 DL, 10-938 DL, 10-1664 DLC, 10-1994 DL, 10-2055 DL, 10-312 DL and 10-3142 DL.

Nancy A. Daniels, Public Defender, and Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Appellee.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

An appeal from the Circuit Court for Bay County. Michael C. Overstreet, Judge.

WEBSTER, J.

In this direct criminal appeal, appellant seeks review of his convictions and sentences for first-degree felony murder and aggravated child abuse, arguing that he could not be convicted of those offenses because of the common-law “merger

Page 2

doctrine.” Because we conclude that we are constrained by precedent from our supreme court to apply the merger doctrine on the facts of this case, we reverse, and remand with directions that the trial court set aside the convictions for felony murder and aggravated child abuse and adjudicate appellant guilty of seconddegree murder (as to which the jury also found him guilty) and sentence him for that offense. We also certify to the supreme court a question we believe to be of great public importance.

I.

Appellant was indicted by a grand jury for first-degree felony murder and aggravated child abuse. As to the felony-murder charge, the indictment alleged that appellant killed the victim while committing aggravated child abuse by slapping the victim into a wall. The allegation was the same for the aggravated child abuse charge. The state subsequently filed an information against appellant charging second-degree murder based on the same allegation as had been made in the indictment. At a hearing on the state’s motion to consolidate the cases, the state explained that it had filed the information “out of an abundance of caution” because of a Florida Supreme Court decision which the prosecutor said “st[ood] for the proposition that if one single act is the basis for the felony murder…, then it’s not felony murder.” The trial court granted the motion to consolidate, and the case was tried to a jury.

Page 3

The state played for the jury a portion of a statement made by appellant in which appellant said that he had slapped the two-year-old victim, who was standing on a coffee table, on the back of the head with such force that the victim fell, hitting his head on the concrete wall. The medical examiner testified that appellant’s version of what had happened was consistent with the findings on autopsy, and that the force of the slap to the back of the victim’s head would have been sufficient to cause death.

At the close of the state’s case, appellant filed a written motion for judgment of acquittal. In it, he argued that, in Brooks v. State, 918 So. 2d 181 (Fla. 2005), the court had held that the merger doctrine precludes conviction for felony murder when the predicate aggravated child abuse consists of a single act. According to appellant, given the evidence in the case, the greatest offense of which he could be convicted was second-degree murder. The trial court initially granted the motion as to the felony-murder charge. However, following additional argument, the trial court reversed itself, agreeing with the state that Brooks did not preclude a conviction for felony murder, and denied the motion.

The jury returned verdicts finding appellant “guilty as charged” of firstdegree felony murder, second-degree murder and aggravated child abuse. At sentencing, the trial court adjudicated appellant guilty of first-degree felony murder and aggravated child abuse, and sentenced him accordingly. Because of double

Page 4

jeopardy concerns, all agreed that appellant should not be adjudicated guilty of, or sentenced for, second-degree murder. This appeal follows.

II.

We would normally begin our analysis with an examination of Brooks v. State, 918 So. 2d 181 (Fla. 2005), to determine what, if anything, it has to say relevant to the issue raised by this appeal. However, another panel of this court has already conducted such an examination.

A.

In Lewis v. State, 34 So. 3d 183 (Fla. 1st DCA 2010), the appellant had been convicted of aggravated child abuse and first-degree felony murder as a result of the drowning death of her daughter. Id. at 184. On appeal, she made the same argument that appellant makes here–that “her convictions must be set aside because the merger doctrine precludes the use of aggravated child abuse as the underlying felony in a felony murder charge if only a single act of abuse led to the child’s death.” Id. As does appellant here, Lewis relied principally on Brooks v. State, which she contended was controlling.

As the Lewis panel explained, “[a]t… common law, the crime of felony murder occurred when a person caused the death of another in the commission of any felony….” Id. The merger doctrine was a common-law limitation on the crime of felony murder. Id. “Without [it], all felonious assaults that resulted in

Page 5

death would be bootstrapped up to first-degree murder regardless of whether the requisite mens rea existed.” Id. at 184-85. See also Robles v. State, 188 So. 2d 789, 792 (Fla. 1966) (discussing the doctrine, but concluding that it had no role to play in Florida because, at the time, Florida’s felony-murder statute “limit[ed] the felony-murder rule to homicides committed in the perpetration of specified felonies, not including assault in any of its forms”).

B.

The Lewis panel next directed its attention to the supreme court’s Brooks decision. As the panel noted, Brooks had been charged with the murders of a mother and her infant daughter. Id. at 186. Each count charged first-degree murder, committed either with premeditation or in the commission of the felony of aggravated child abuse. Id. Brooks was not separately charged with aggravated child abuse. Id. The jury returned a general verdict finding Brooks guilty as charged. Id. The trial court adjudicated Brooks guilty of two counts of firstdegree murder and, following the jury’s recommendation, sentenced Brooks to death. Id.

In Brooks, the court characterized Brooks’ argument as follows:

[Brooks] contends that because the single act of stabbing [the child] formed the basis of both the aggravated child abuse aggravating factor under section 921.141(5)(d) of the Florida Statutes and the first-degree felony murder charge, the court should have found that the aggravated

Page 6

child abuse allegation “merged” with the more serious homicide charge. Thus, according to Brooks, the State should have been totally precluded from invoking the felony murder doctrine and should have been limited to proving first-degree murder only on the theory of premeditation for both murders. Brooks does not merely attack the use of the underlying felony as an aggravator; he asserts that the state is prohibited from using aggravated child abuse as the felony crime.

Brooks, 918 So. 2d at 197-98. Four members of the court (Chief Justice Pariente, and Justices Anstead, Quince and Cantero) agreed. Id. at 198, 211. The fourmember majority explained its conclusion thus:

Mills [v. State, 476 So. 2d 172 (Fla. 1985)] clearly bars a conviction of aggravated battery where a single act of aggravated battery also causes a homicide. This determination is based on the fact that the aggravated battery has merged into the homicide. Likewise, had Brooks been charged with aggravated child abuse, he could not have been convicted of that crime. That is because aggravated child abuse is an aggravated battery, the only difference being that the victim is a child…. In light of the fact that Brooks delivered a single stabbing blow that resulted in [the child's] death, the act constituting the aggravated child abuse merged into the infant’s homicide.

….

… [T]he instant case involved the single act of stabbing which caused a single injury. In a case such as this where the Mills rule prevents a conviction of aggravated battery because a single act caused both an aggravated battery and a homicide, aggravated battery cannot then serve as the underlying felony of the felony murder charge. It makes no difference that Brooks was not charged or convicted of aggravated child abuse

Page 7

because that crime, under these facts, merges with the homicide itself. In the instant matter, the action underlying the aggravated child abuse factor constituted the fatal stab wound that killed [the child]. Because there is no separate offense of aggravated child abuse, that crime cannot logically serve as the underlying felony in a felony murder charge.

Id. at 198-99.

After noting the above language from Brooks, the Lewis panel concluded that it was not binding on them because the discussion was “ultimately immaterial to the outcome of the case” and, therefore, constituted dicta. Lewis, 34 So. 3d at 186.

C.

To the extent that a discussion such as that of Brooks in the Lewis decision is necessary to the panel’s decision, it is binding on us unless overruled either by this court, sitting en banc, or a higher court. See, e.g., Carr v. Carr, 569 So. 2d 903, 903 (Fla. 4th DCA 1990) (stating that “we must follow the law of our own cases until we are overruled or until we recede from them”). However, if it is unnecessary, it constitutes dicta, and is not binding on other panels. See, e.g., Conway v. Sears, Roebuck & Co., 185 So. 2d 697, 699 (Fla. 1966). In the penultimate paragraph of its opinion, the Lewis panel said:

Assuming arguendo that the statements in Brooks are not dicta and are applicable to the instant case, we would

Page 8

still affirm. Based on the child’s injuries and the manner of her death, it is clear that more than a single act of abuse led to her death.

Lewis, 34 So. 3d at 187. We believe it is relatively clear from this language that it was unnecessary for the Lewis panel to reach the question of whether the discussion in Brooks was dicta and that, as a result, the discussion of whether it was or was not dicta is, itself, dicta. Accordingly, the discussion of Brooks in Lewis is not binding on us, and we must conduct our own examination.

D.

While the Lewis panel is correct when it says that the discussion in Brooks “had no effect on the Court’s decision to affirm Brooks’ convictions,” id. at 186, our examination of the opinions in Brooks leads us to conclude that the discussion was necessary to the court’s decision and, therefore, was not dicta.

We candidly acknowledge that the opinions in Brooks (including two on rehearing, there are five), are not models of clarity. However, having spent considerable time parsing the language of those opinions, we are satisfied that, insofar as pertinent to our inquiry, a majority of the court held that it was error (1) to convict Brooks of felony murder based on a predicate felony of aggravated child abuse, see 918 So. 2d at 197-98 (where four members of the court “agree” with what is characterized as Brooks’ contention that “the State should have been totally precluded from invoking the felony murder doctrine and should have been limited

Page 9

to proving first-degree murder only on the theory of premeditation for both murders”), id. at 211 (Pariente, C.J., concurring in part and dissenting in part) (stating, “I agree with the majority that there could be no crime of aggravated child abuse based on a single stab wound because that crime merges with the homicide”), id. at 218 (Lewis, J., concurring in part and dissenting in part) (stating that “[t]he majority opinion adopts and endorses Brooks’ view and applies the rule of law established in Mills… to totally void aggravated child abuse as both a basis for any felony murder conviction and as a statutory aggravator in sentencing…”), id. at 221 (Pariente, C.J., dissenting from denial of rehearing) (arguing that reversal of Brooks’ convictions was required because “the general verdict of guilt precludes us from determining whether the jury relied upon the valid premeditated murder theory or the legally invalid felony murder theory”), id. (Lewis, J., dissenting from denial of rehearing) (arguing that, the “majority having reached the conclusion that no underlying felony existed as a matter of law, we must grant Brooks’s motion for rehearing, reverse his convictions, and remand this case for a new trial”); and (2) for the trial court to rely on aggravated child abuse as an aggravating factor for sentencing purposes, see id. at 199 (where four members of the court state that the trial court “err[ed] in relying on the aggravated child abuse factor in aggravation” of Brooks’ sentences), id. at 202 (where four members of the court characterize as error “reliance in sentencing on the aggravating factor that the

Page 10

murders were committed during the course of an act of aggravated child abuse”), id. at 217 (Pariente, C.J., concurring in part and dissenting in part) (stating, “I concur in the majority’s determination that the underlying felony of aggravated child abuse merges with the homicide for the killing of [the child] with a single stab wound, invalidating the ‘murder in the course of a felony’ aggravator found by the trial court as to both victims”), id. at 218 (Lewis, J., concurring in part and dissenting in part) (stating that “[t]he majority opinion adopts and endorses Brooks’ view and applies the rule of law established in Mills… to totally void aggravated child abuse as both a basis for any felony murder conviction and as a statutory aggravator in sentencing…”), id. at 220-21 (Pariente, C.J., dissenting from denial of rehearing) (stating, “I concurred in the majority’s determination that the aggravated child abuse merged into the felony murder and therefore did not support a separate aggravating circumstance”). However, we conclude, further, that a majority of the court determined these errors were harmless. The majority actually says as much with regard to use of aggravated child abuse as an aggravating factor for sentencing purposes, see id. at 199 (“[t]he trial court’s error in relying on the aggravated child abuse factor in aggravation has no impact on the sentencing determination for either murder” because, even without that factor, “[t]he aggravating factors continue to substantially outweigh any mitigation”), id. at 202 (concluding in its “cumulative error analysis” that “there is no reasonable

Page 11

possibility that” the errors, including “the erroneous reliance in sentencing on the aggravating factor that the murders were committed during the course of an act of aggravated child abuse… contributed to Brooks’ [sentences]“). While we have been unable to find any direct statement that the majority also concluded that allowing the charges to go to the jury on alternative theories of either premeditated first-degree murder or felony murder was harmless, such a conclusion seems to us inescapable in light of the opinions of Chief Justice Pariente and Justice Lewis dissenting from denial of rehearing. See id. at 220-21 (Pariente, C.J., dissenting from denial of rehearing); id. at 221 (Lewis, J., dissenting from denial of rehearing).

Because we conclude that the discussion in Brooks is necessary to the court’s decision, we conclude, further, that it is not dicta. See Rosa v. State, 35 Fla. L. Weekly D1361 (Fla. 2d DCA June 18, 2010) (disagreeing with the Lewis panel’s conclusion that the pertinent language in Brooks was dicta). Accordingly, we are obliged to follow it. E.g., Cont’l Assurance Co. v. Carroll, 485 So. 2d 406, 409 (Fla. 1986); Hoffman v. Jones, 280 So. 2d 431, 433-34 (Fla. 1973). Because it is clear that the child victim died as the result of a single blow from appellant, we are constrained to reverse appellant’s convictions. However, that does not mean that, while doing so, we may not state our reasons for advocating change.

Page 12

Hoffman, 280 So. 2d at 434. In this regard, we are in complete agreement with the Lewis panel that Justice Lewis’ position in Brooks was the better-reasoned one.

E.

As we have already noted, the merger doctrine is a creature of the common law. As such, it must yield to an inconsistent statute adopted by the legislature. See, e.g., State v. Egan, 287 So. 2d 1, 6 (Fla. 1973); § 2.01, Fla. Stat. (2007). To the extent pertinent, the felony-murder statute reads: “The unlawful killing of a human being… [w]hen committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any… [a]ggravated child abuse… is murder in the first degree and constitutes a capital felony….” § 782.04(1)(a)2.h., Fla. Stat. (2007) (emphasis added). We see nothing unclear or ambiguous about this statutory language. It clearly states that “any” aggravated child abuse will support a conviction for felony murder. As Justice Lewis said in Brooks, “[t]he plain text of the statute… affords no indication that the Legislature intended to exclude application of the felony murder doctrine in those instances of aggravated battery on a child that involve a solitary stab wound, a lone blow to the head, one gunshot wound, or any other single act of violence”; rather, “[t]he plain statutory language reflects a policy decision to protect the children of this state by subjecting those whose acts of child abuse produce death to the highest possible penalty.” 918 So. 2d at 219 (footnote omitted). The Lewis panel agreed:

Page 13

the felony murder statute specifically provides that aggravated child abuse is a predicate offense for felony murder. The plain, unambiguous language of the statute demonstrates that the legislature intended that a defendant who kills a child during the perpetration of the crime of aggravated child abuse may be charged and convicted of both aggravated child abuse and felony murder, regardless of the number of acts of abuse which caused the child’s death.

34 So. 3d at 186-87. Accord Rosa v. State, 35 Fla. L. Weekly D1361, D1361 (Fla. 2d DCA June 18, 2010). Interestingly, the Brooks majority did not address Justice Lewis’ criticism

F.

Accordingly, while we conclude that we are constrained by Brooks to reverse appellant’s convictions, we believe that a proper deference to the legislature’s adoption of section 782.04(1)(a)2.h. requires the conclusion that aggravated child abuse will support a felony-murder conviction, even if the abuse consisted of a single act. We certify the following question, which we believe to be of great public importance, to the supreme court:

DOES BROOKS v. STATE, 918 So. 2d 181 (Fla. 2005), PRECLUDE A CONVICTION FOR FELONY MURDER BASED ON THE PREDICATE OFFENSE OF AGGRAVATED CHILD ABUSE WHEN THE ABUSE CONSISTS OF A SINGLE ACT, NOTWITHSTANDING THE LANGUAGE OF SECTION 782.04(1)(a)2.h., FLORIDA STATUTES (2007)?

Page 14

Our resolution of this issue renders appellant’s remaining issue moot.

III.

We reverse appellant’s convictions for first-degree felony murder and aggravated child abuse, and remand with directions that the trial court adjudicate appellant guilty of second-degree murder and sentence him for that offense.

REVERSED and REMANDED, with directions. PADOVANO, J., CONCURS; ROWE, J., DISSENTS WITH OPINION.

Page 15

ROWE, J., dissenting.

I respectfully dissent. While I join the majority in certifying the question as one of great public importance, I disagree with the majority’s conclusion that we are constrained by Brooks v. State, 918 So. 2d 181 (Fla. 2005), to reverse Mr. Sturdivant’s convictions for felony murder and aggravated child abuse. Nor can I agree that Brooks held that a single act of aggravated child abuse may not serve as the underlying felony in a felony murder conviction. See id. at 197-99. As acknowledged by the majority opinion, this court very recently in Lewis v. State, 34 So. 3d 183, 186-87 (Fla. 1st DCA 2010), reached the opposite conclusion, finding that the relevant language in Brooks was merely dicta and that a single act of aggravated child abuse may, under the plain language of the murder statute, serve as a predicate crime for felony murder. The prior decision in Lewis is correct. The language in Brooks was merely dicta and, therefore, not binding precedent. Id. at 186. Because the Legislature has clearly expressed that a single act of aggravated child abuse may serve as both the predicate for a felony murder conviction and for the underlying felony itself, I would affirm Mr. Sturdivant’s judgment and sentences for felony murder and aggravated child abuse.

Analysis

I. The Contested Language in Brooks was Not a Holding of the Case.

A. Language Not Necessary to a Court’s Decision is Mere Dicta.

Page 16

I disagree with the majority’s conclusion that the language voiding aggravated child abuse as a predicate crime for felony murder is a holding of the case. Although the majority cites a number of statements from Brooks to claim that this language is a holding, simply referring to such language as a holding does not make it so:

[N]o matter how often or how plainly a judicial panel may put in its opinions the “we hold X,” “X” is not law and is not binding on later panels unless “X” was squarely presented by the facts of the case and was a proposition that absolutely must have been decided to decide the concrete case then before the court.

Lewis v. State, 623 So. 2d 1205, 1208 (Fla. 4th DCA 1993) (Farmer, J., dissenting) (quoting New Port Largo, Inc. v. Monroe County, 985 F.2d 1488 (11th Cir. 1993) (Edmondson, J., specially concurring)).

Indeed, as then-Judge Canady observed in his special concurrence in State v.Yule, 905 So. 2d 251, 259 (Fla. 2d DCA 2005), the doctrine of stare decisis does not require courts to “treat every broad statement of principle made in a prior decision as establishing a binding rule.” In discussing the distinctions between holding and dicta, Judge Canady referred to a law review article in which dicta is defined as a statement not related to the majority’s “chosen decisional path or paths of reasoning”:

A holding consists of those propositions along the chosen decisional path or paths of reasoning that (1) are actually decided, (2) are based upon the facts of the case, and (3) lead to the judgment. If not a holding, a proposition stated in a case counts as dicta.

Page 17

Id. at 259 n.10 (quoting Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57 Stan. L. Rev. 953, 1065 (2005)). It is axiomatic that language that is not a holding is dicta. Only that language that is “clearly critical to the outcome” of the case may be considered a holding of the case. See Bellsouth Telecomms., Inc. v.Church & Tower of Fla., Inc., 930 So. 2d 668, 673 (Fla. 3d DCA 2006) (“[O]ur reliance upon Witt was clearly critical to the outcome in Carrousel, and, therefore, not dictum.”). Where a statement does not directly control the outcome, it is mere dicta and without the force of precedent. See State ex rel. Biscayne Kennel Clubv. Bd. of Bus. Regulation of Dep’t of Bus. Regulation, 276 So. 2d 823, 826 (Fla. 1973); Estate of Williams ex rel. v. Tandem Health Care of Fla., Inc., 899 So. 2d 369, 374 (Fla. 1st DCA 2005).

B. The Contested Language in Brooks is Not Necessary to the Outcome of That Case.

The contested language of the Brooks majority opinion, that a single act of aggravated child abuse cannot serve as the predicate for felony murder, was not necessary to the outcome of that case; if it was a holding, it would have required reversal of Brooks’s conviction. Although this is precisely what Justice Lewis urged the court to do on rehearing, i.e., vacate Brooks’s conviction, the majority declined to do so. Brooks, 918 So. 2d at 221-24. Under well established precedent, reversal is required where a general verdict is based upon multiple

Page 18

grounds, one of which is unsupportable, and where it is impossible to tell the ground upon which the jury based its verdict. See, e.g., Yates v. United States, 354 U.S. 298, 312 (1957), overruled on other grounds by Burks v. United States, 437 U.S. 1 (1978); accord Delgado v. State, 776 So. 2d 233, 242 (Fla. 2000) (remanding for a new trial where the theory of felony murder was legally inadequate), superseded on other grounds by statute, §810.015, Fla. Stat. (2001); Mackerley v. State, 777 So. 2d 969, 969 (Fla. 2001).

In Brooks, the jury convicted the defendant of first-degree murder. Because a general verdict was rendered, the jury did not have the option to designate whether its verdict was based on premeditated murder or felony murder. Had the majority’s discussion of aggravated child abuse as a predicate for felony murder been essential to the outcome of the case, reversal would have been required. However, only Justices Pariente, Anstead, and Lewis voted to grant rehearing to reverse the murder conviction. The remaining four justices affirmed the murder conviction and denied rehearing. Thus, the discussion regarding child abuse and felony murder could only be limited to the consideration of aggravated child abuse as a statutory aggravator at sentencing—not the underlying conviction for felony murder. Because the language at issue in Brooks is not only unnecessary, but in fact at odds with the outcome, it cannot be a holding and must instead be treated as dicta.

Page 19

II. If a Single Act of Aggravated Child Abuse Cannot Serve as the Predicate for a Felony Murder, a Conviction by General Verdict Would Not be Harmless Error.

A. A Conviction by General Verdict is Erroneous When it Rests Upon Multiple Bases, One of Which is Legally Invalid.

While conceding in its analysis that the Lewis panel was correct that the discussion in Brooks had no effect on the Court’s decision to affirm Brooks’s convictions, the majority, nevertheless, reaches the ” inescapable conclusion” that the Brooks court found harmless any error by the trial court in allowing the charges to go to the jury on alternative theories of either premeditated first-degree murder or felony murder. This conclusion is far from “inescapable.” In fact, it is contrary to well-settled law.

It cannot be harmless error to convict a defendant by general verdict for first-degree murder on alternate theories of premeditation and felony murder when the felony murder theory is legally invalid, even where there is evidence in the record of premeditation. See, e.g., Mackerley v. State, 777 So. 2d 969, 969 (Fla. 2001). Had the Brooks majority actually determined that a single act of aggravated child abuse could not serve as the basis for a felony murder conviction, it could not have then concluded that Brooks’s conviction by general verdict was harmless. Instead, such a determination would have required reversal.

B. The Brooks Majority Did Not Hold that Brooks’s Conviction by General Jury Verdict Was Error Based on the Principle that Aggravated Child Abuse Could Not Serve as the Predicate for Felony Murder.

Page 20

The cumulative error analysis performed in Brooks refutes a conclusion that the Brooks majority regarded as harmless error Brooks’s conviction by general jury verdict based on a legally invalid theory of felony murder. When conducting a cumulative error analysis, the reviewing court identifies all the known errors in a trial which individually were considered harmless, and then determines whether in the aggregate the errors deprived the defendant of a fair trial. See, e.g., Suggs v. State, 923 So. 2d 419, 441 (Fla. 2005); 5 Am. Jur. 2d Appellate Review § 668 (2010). Further, in a cumulative-error analysis the reviewing court aggregates only actual errors to determine a cumulative effect. 1 Federal Trial Handbook Criminal § 2:35 (4th ed. 2009). In affirming Brooks’s murder conviction, the court considered five errors it had identified in the case, among them “the erroneous reliance in sentencing on the aggravating factor that the murders were committed during the course of an act of aggravated child abuse.” Brooks v. State, 918 So. 2d 181, 202 (Fla. 2005) (emphasis added). Thus, the court only considered harmless error in regard to applying aggravated child abuse as an aggravating factor in sentencing. In its analysis of errors, the Brooks majority does not enumerate as error Brooks’s conviction for first-degree murder because it may have been based on a legally invalid theory of felony murder. Id. The court’s failure to identify that as an error in its cumulative error analysis suggests that the court did not

Page 21

consider it an actual error in Brooks’s conviction, let alone a harmless error.

III. The Plain Language of the Murder Statute Allows Aggravated Child Abuse to Serve as the Predicate for Felony Murder.

Because the dicta in Brooks stating that a single act of aggravated child abuse cannot serve as a predicate crime for felony murder is not controlling, we should adhere to our prior decision in Lewis v. State, 34 So. 3d 183 (Fla. 1st DCA 2010). Although dicta from the Florida Supreme Court “may afford welcome guidance… such passages lack the binding force of precedent.” Sims v. State, 743 So. 2d 97, 99 (Fla. 1st DCA 1999); accord Estate of Williams ex rel. v.Tandem Health Care of Fla., Inc., 899 So. 2d 369, 374 (Fla. 1st DCA 2005). In fact, in cases such as this one, where the Legislature has clearly declared a contrary intent, such dicta must be disregarded.

Among the expressly enumerated predicate crimes for felony murder is “aggravated child abuse.” § 784.02(1)(a)2.h., Fla. Stat. The plain language of the murder statute “demonstrates that the Legislature intended that a defendant who kills a child during the perpetration of the crime of aggravated child abuse may be charged and convicted of both aggravated child abuse and felony murder.” Lewis, 34 So. 3d at 186-87. This is true even if a single act causes the child’s death. Id. at 187. Based upon the plain language of the statute defining first-degree murder, aggravated child abuse may serve as the predicate crime in a felony murder conviction even where only a single act of aggravated child abuse occurs.

Page 22

Accordingly, Mr. Sturdivant’s convictions for felony murder and aggravated child abuse should be affirmed; therefore, I respectfully dissent.

Nancy A. Daniels, Public Defender, Tallahassee and James T. Miller, Special Assistant Public Defender, Jacksonville, for Appellant.

Bill McCollum, Attorney General and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

An appeal from the Circuit Court for Duval County. Linda F. McCallum, Judge.

PER CURIAM.

Appellant seeks review of his conviction for first-degree murder and his life sentence in prison. He raises one issue on appeal: whether the trial court erred in

Page 2

denying his motion to suppress his confession. We conclude that the trial court properly denied the motion to suppress and, therefore, affirm Appellant’s conviction and sentence.

On June 3, 2008, Jason James was reported missing. Jason’s brother, Phillip, went to Appellant’s house to find Jason because he suspected Appellant might be involved in Jason’s disappearance. Phillip saw Jason’s vehicle at Appellant’s house and found Jason’s keys inside the house. There was blood on the front of Jason’s vehicle. Phillip began looking around Appellant’s property and found burnt remains of a body in an outside fire pit. The parties stipulated that the burnt remains were Jason’s. Drag marks were found from the driveway to the burn pile area. The medical examiner found shotgun pellets in Jason’s skull and testified that the skull wound was fresh and had caused Jason’s death. A 20-gauge shotgun was found inside Appellant’s house.

Appellant’s neighbor testified that after he heard two gunshots, Appellant called him and told him that he had just shot two turtles and was going to start a fire. The neighbor also saw another person at Appellant’s property, Bobby Bethune. Bobby testified that he was at Appellant’s house when Jason arrived, that Appellant ran to Jason with a shotgun and shot Jason twice, once in the head, and that Appellant then made Bobby drag Jason’s body to the burn pile and help Appellant burn the body.

Page 3

The grand jury returned an indictment for first-degree murder. At trial, the defense theory was that the confession to the police was false and that Bobby Bethune committed the murder. The jury ultimately found Appellant guilty as charged. The trial court sentenced Appellant to life in prison with a minimum mandatory of life. On appeal, Appellant contends that his confession was involuntary because the police interview continued despite his unequivocal request for counsel.

The record reflects that Appellant was read and affirmatively waived his Miranda rights before he was taken into custody and again before he was interviewed at the police station. Approximately 40 minutes into the interview, before he made any incriminating statements, Appellant made the following statement, which is the focus of Appellant’s argument on appeal: “I mean if I am being held and I’m being charged with something I need to be on the phone calling my lawyer.” Over the course of the next several minutes of the interview, the detective explained to Appellant that she did not know whether to charge him or what to charge him with at that point because she was still in the process of trying to determine what happened. Appellant indicated that he understood, stating “I’m 100 percent with you and I want you to do your job” and “whatever you need to ask me you can ask me.” The following colloquy then took place:

Page 4

Detective: So we-can keep going?

Appellant: Yeah

Detective: All right. And again you’re-you’re sitting here absolutely open-minded to talk to me without any problem?

Appellant: Yes

Almost 30 minutes after this exchange, Appellant confessed to the crime, explaining in graphic detail how he shot Jason twice with his 20-guage shotgun (reloading between shots) and then drug Jason’s body to an outside fire pit where he burned the body along with old tires and yard trash. Appellant indicated that Bobby Bethune had nothing to do with the murder.

Prior to trial, Appellant moved to suppress his confession, arguing that he had made an unequivocal request for counsel but the police continued to interrogate him. After viewing the video of the police interview, the trial court denied the motion. The trial court found that Appellant’s statement that “I mean if I am being held and I’m being charged with something I need to be on the phone calling my lawyer” was not an unequivocal request for counsel that would require termination of questioning. The trial court also found that the detective did ask clarifying questions before continuing the interview and that Appellant again consented to be interviewed after making this statement. We agree with the trial court’s ruling.

Page 5

A trial court’s ruling on a motion to suppress carries a presumption of correctness. Connor v. State, 803 So. 2d 598, 605 (Fla. 2001); State v. Davis, 971 So. 2d 1017, 1018 (Fla. 1st DCA 2008). We give deference to the trial court’s factual findings if they are supported by competent, substantial evidence but we review the trial court’s determination of constitutional rights de novo. Connor, 803 So. 2d at 605. Specifically, we review de novo the trial court’s determination as to whether Appellant’s statement constituted an unequivocal assertion of his right to counsel. Id. at 606.

The Sixth Amendment right to counsel attaches only at the initiation of adversary criminal proceedings; however, a suspect subject to custodial questioning has the right to consult with an attorney and to have counsel present during the interrogation. Miranda v. Arizona, 384 U.S. 436, 469-73 (1966); see also Davis v. U.S., 512 U.S. 452, 456-57 (1994). The right to counsel established by Miranda is a procedural safeguard that is not a right itself protected by the Constitution but is instead a measure to protect the Fifth Amendment right against compulsory self-incrimination. Davis, 512 U.S. at 457; see also Dickerson v. U.S., 530 U.S. 428, 442-44 (2000) (explaining that Miranda announced a “constitutional rule,” but stopping short of holding that the Miranda warnings are required by the Constitution). If a suspect clearly and unequivocally requests counsel at any time during a custodial interview, the interrogation must immediately stop until a

Page 6

lawyer is present or the suspect reinitiates conversation. Davis, 512 U.S. at 458; see also Traylor v. State, 596 So. 2d 957, 966 (Fla. 1992). However, Miranda and its progeny do not require police officers to stop an interrogation when a suspect, who has made a knowing and voluntary waiver of his rights, thereafter makes an equivocal or ambiguous request for counsel. Davis, 512 U.S. at 459; see also Berghuis v. Thompkins, 130 S.Ct. 2250, 2259 (2010). On this point, the Florida Supreme Court explained that “police in Florida need not ask clarifying questions if a defendant who has received proper Miranda warnings makes only an equivocal or ambiguous request to terminate an interrogation after having validly waived his or her Miranda rights.” State v. Owen, 696 So. 2d 715, 719 (Fla. 1997). The suspect must “articulate his desire to cut off questioning with sufficient clarity that a reasonable police officer in the circumstances would understand the statement to be an assertion of the right to remain silent.” Id. at 718; accord Davis, 512 U.S. at 459.

Here, Appellant’s statement that “I mean if I am being held and I’m being charged with something I need to be on the phone calling my lawyer” was not an unequivocal request for counsel. The statement did not clearly indicate that Appellant wanted counsel present at that time or that he would not answer any further questions without counsel. At most, his statement was a conditional request for counsel because he prefaced the statement with “if I’m being held and

Page 7

I’m being charged with something.” See Walker v. State, 957 So. 2d 560, 574 (Fla. 2007) (concluding that defendant’s statement “I think I might want to talk to an attorney” was an equivocal statement and did not require termination of the interrogation); but cf Wilder v. State, 35 Fla. L. Weekly D1523 (Fla. 1st DCA July 7, 2010) (determining that defendant’s statement “I would rather not even talk unless I had an attorney present” clearly invoked his right to counsel and police understood the request and ended the interrogation).

Appellant further argues that even if the statement was not an unequivocal request for counsel, it was a “prefatory question” about his right to counsel that the police were required to answer before proceeding with the interrogation in accordance with Almeida v. State, 737 So. 2d 520 (Fla. 1999). We agree with Appellant’s characterization of the statement, but contrary to Appellant’s argument, we conclude that the police complied with the requirements of Almeida.

Almeida involved a defendant making an inculpatory statement concerning an unrelated killing in response to police questioning. Id. at 522. After the police started recording the interview and the defendant was read his rights, an officer asked the defendant if he wished to speak without an attorney present. Id The defendant responded “Well, what good is an attorney going to do?” Id The police ignored the question and continued their questioning.

Page 8

The supreme court held that, unlike Owen, which involved a statement allegedly invoking a right, the statement in Almeida was a “custodial utterance that was prefatory to-and possibly determinative of-the invoking of a right.” Id. at 523. The court established a three-step analysis to be applied to such statements: first, the court must determine whether the defendant was in fact referring to his right to counsel; second, the court must determine whether the utterance was a clear, bona fide question calling for an answer, rather than a rumination or a rhetorical question; and third, the court must determine whether the officers made a good-faith effort to give a simple and straightforward answer. Id. at 523-25. See also State v. Glatzmayer, 789 So. 2d 297, 304 (Fla. 2001) (summarizing the “analytical model” in Almeida).

Here, as in Almeida and Glatzmayer, Appellant was clearly referring to his right to counsel. Although the circumstances of this case are dissimilar to those cases in that Appellant’s statement was made well into the police interview and not in response to the reading of his rights, Appellant clearly indicated a potential desire to speak with a lawyer at some point. The specific reference to counsel distinguishes this case from Barger v. State, 923 So. 2d 597 (Fla. 5th DCA 2006), where the court held that the defendant’s statement that “I want to know what I am being charged with” was not a prefatory question concerning a constitutional right that required a response under Almeida. Appellant’s statement is a much more

Page 9

direct reference to the right to counsel than the statement in State v. Soto, 954 So. 2d 686, 688-89 (Fla. 4th DCA 2007)-”I can’t make a phone call or nothing, no?”-which the court found sufficient to trigger the officers’ duty under Almeida to provide a simple straightforward answer before continuing the interview.

Turning to the next step in the Almeida analysis, the statement at issue was a bona fide question calling for an answer. Although the record of the suppression hearing does not contain any testimony concerning how the officers perceived Appellant’s statement, the transcript of the interview clearly reflects that the officers interpreted the statement as a question in the manner suggested by Appellant. See Glatzmayer, 789 So. 2d at 304 (concluding that the defendant’s question was a genuine question based, in part, on the fact that the “officers responded to the utterance as if it were a bona fide question calling for an answer”). The detective sought clarification of Appellant’s statement (“you said something when I walked out”), and Appellant later phrased the prefatory portion of the statement as a question (“I asked [the other detective] am I being charged with something?” and “my question is if I’m being charged with murder or something else”). Thus, pursuant to Almeida, the police were required to answer Appellant’s “implied question,” as Appellant characterized it in his brief.

Contrary to Appellant’s argument that the police ignored his question, the record reflects that the detective made a good-faith effort to answer the question.

Page 10

The detective clearly explained that she did not know whether to charge Appellant or what to charge him with at that point because she was still investigating, and she also was frank with Appellant that he was “not in a good situation” because a dead body was found on his property. Appellant seemed satisfied with the detective’s response because he expressly agreed to continue the interview. The fact that the detective not only made a good-faith effort to answer Appellant’s prefatory question, but that she apparently did so to Appellant’s satisfaction because he agreed to continue the interview satisfies the requirements of Almeida. See 737 So. 2d at 525 (“Once the officer properly answers the [defendant's prefatory] question, the officer may then resume the interview (provided of course that the defendant in the meantime has not invoked his or her rights).”); see also Lewis v. State, 747 So. 2d 995 (Fla. 5th DCA 1999) (affirming trial court’s denial of motion to suppress where officers not only answered the defendant’s question concerning his rights, but the defendant also thereafter verbally waived his rights and continued with the interview).

The main purpose of Miranda and its progeny is to ensure that confessions are not coerced. See, e.g., New York v. Quarles, 467 U.S. 649 (1984); Ross v. State, 35 Fla. L. Weekly S295 (Fla. May 27, 2010). Here, the record does not reflect any coercion or “steamrolling.” See Glatzmayer, 789 So. 2d at 305 (noting that the officers gave a simple and reasonable response to defendant’s question

Page 11

about counsel and did not try “to give an evasive answer, or to skip over the question, or to override or ‘steamroll’ the suspect”). The detective was fair and honest in addressing Appellant’s concerns. She did not seek to elicit incriminating statements from Appellant until after she answered his question and he agreed to continue the interview, and she did not badger Appellant into confessing. Indeed, it is clear from the video of the police interview, which the jury also viewed, that Appellant made his confession voluntarily and without any coercion.

For these reasons, the trial court properly denied Appellant’s motion to suppress his confession. Accordingly, we affirm Appellant’s conviction and sentence.

AFFIRMED.

WOLF, ROBERTS and WETHERELL, JJ., CONCUR.

Nancy A. Daniels, Public Defender and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General; Samuel A. Perrone and Thomas D. Winokur, Assistant Attorneys General, Tallahassee, for Appellee.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

An appeal from the Circuit Court for Columbia County. Leandra G. Johnson, Judge.

WETHERELL, J.

Appellant seeks review of the revocation of his probation and resulting sentence. He argues that the trial court erred in revoking his probation 1) based solely on global positioning system (GPS) data from his electronic monitoring

Page 2

device, and 2) because the alleged violation was not willful and substantial. We affirm.

In May 2008, Appellant was convicted of lewd or lascivious battery on a child and sentenced to one year in the county jail followed by 12 years of sex offender probation with the first year being served on community control. In July 2009, less than three months after Appellant was released on community control, an affidavit of violation was filed alleging that on June 28, 2009, Appellant was away from his approved residence in violation of his community control conditions requiring him to comply with the instructions of his probation officer and to remain confined to his residence. The only evidence presented by the state in support of the allegation that Appellant was away from his residence on June 28, 2009, was GPS data from the monitoring device that Appellant was required to wear as a condition of his community control.

As he did below, Appellant argues on appeal that the GPS data was inadmissible hearsay and thus insufficient to support the finding that Appellant violated his probation. The state, in turn, argues that the GPS data was admissible under the business records exception to the hearsay rule.

Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(1)(c), Fla. Stat (2009). The GPS data is clearly hearsay

Page 3

because it purports to show Appellant’s locations on June 28, 2009, and it is being offered for the truth of the matter asserted, ie., to prove that Appellant was in the locations away from his residence reflected in the GPS data.

Hearsay is admissible in a probation or community control violation proceeding, but probation or community control may not be revoked solely on the basis of hearsay evidence. See Smith-Curles v. State, 24 So. 3d 702, 702-03 (Fla. 1st DCA 2009). Revocation may, however, be based solely upon hearsay evidence that falls within an exception to the hearsay rule. See Thomas v. State, 711 So. 2d 96, 97 (Fla. 4th DCA 1998) (noting that the question in such proceedings is not whether all of the evidence offered in support of revocation was hearsay, but rather whether there is evidence to support revocation that would have been admissible at a criminal trial).

The business records exception to the hearsay rule provides:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness.

Page 4

§ 90.803(6)(a), Fla. Stat. The state had the burden to lay the requisite foundation for admission of the GPS data under this hearsay exception. See Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008) (“[T]he evidentiary proponent… had the burden supplying a proper predicate to admit this evidence under an exception to the rule against hearsay.”); Pickrell v. State, 301 So. 2d 473, 474 (Fla. 2d DCA 1974) (“Computer printouts, like business records, are admissible if the custodian or other qualified witness is available to testify as to manner of preparation, reliability and trustworthiness of the product.”) (citations omitted); see also Jackson v. State, 877 So. 2d 816, 816-17 (Fla. 4th DCA 2004) (quoting Pickrell).

The state laid the foundation necessary for the admission of the GPS data under the business records exception. The state presented the testimony of an employee of the monitoring company who explained how the electronic monitoring system worked and how the GPS data from the offender’s monitoring device is compiled into a computer database that the probation officer can access to track the offender’s location within an 18-foot radius. Appellant’s probation officer explained how he accessed the database and printed the exhibits introduced into evidence that showed, based upon the GPS data, that Appellant was away from his residence on June 28, 2009. The officer further testified how, on a prior occasion, he took Appellant to different locations and checked the electronic

Page 5

monitoring data to ensure that the information provided by the equipment was accurate.

Appellant relies on Hogan v. State, 583 So. 2d 426 (Fla. 1st DCA 1991), in support of his contention that the exhibit containing the GPS data is inadmissible hearsay. In Hogan, we determined that laboratory reports were hearsay and not subject to the business records exception because the community control officer testified that she kept the reports as part of the course of business not that she made the reports during the course of business. Id. However, Hogan is distinguishable because in this case an employee of the monitoring company explained how the GPS data was compiled from the monitoring device and Appellant’s probation officer explained how he downloaded the information and printed reports like the exhibit received into evidence approximately every three days as a normal course of his business as a probation officer. As such, contrary to Appellant’s argument, the records are admissible under the business records exception.

Appellant further argues that there was insufficient evidence to support the trial court’s finding that his violation of probation was willful. Courts must consider violations on a case-by-case basis to determine whether the violation was willful and substantial by a greater weight of the evidence. State v. Carter, 835 So. 2d 259, 261 (Fla. 2002). Here, the probation officer testified that Appellant was away from his residence and “wandering the neighborhood” on an almost daily

Page 6

basis, and that he had personally seen Appellant away from his residence on at least one occasion. Further, the officer testified that Appellant was aware that he was not to leave his residence and that he had warned Appellant multiple times not to leave. Considering this testimony in combination with the GPS data discussed above, the trial court did not abuse its discretion in determining that Appellant willfully and substantially violated his probation.

Accordingly, we affirm the revocation of Appellant’s probation and the resulting sentence.

AFFIRMED.

WOLF and ROBERTS, JJ., CONCUR.

Yancy Bernard Clayton, pro se.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARINGMOTION AND, IF FILED, DETERMINED

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Highlands County; Peter F. Estrada, Judge.

PER CURIAM.

After Yancy Bernard Clayton filed a timely motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 raising two claims of ineffective assistance of counsel, the postconviction court summarily denied both claims in 2008. We reviewed the postconviction court’s order in case number 2D08-2020 and reversed and remanded for further proceedings. Specifically, as to Clayton’s claim that his counsel was ineffective for failing to move to disqualify the presiding judge on the

Page 2

ground that the judge was a former assistant state attorney who had prosecuted cases against him, this court held that Clayton’s claim was facially sufficient and that, on remand, the postconviction court should either hold an evidentiary hearing or deny the claim by attaching sufficient record documents to its order that would refute the allegations. On the second claim, we held that the postconviction court had decided the claim on the wrong legal basis and remanded for the court to consider the claim using the correct standard. See Clayton v. State, 12 So. 3d 1259 (Fla. 2d DCA 2009). On remand, the postconviction court entered the order from which Clayton now appeals. The court struck the first claim without prejudice and required Clayton to provide record attachments to support his claim. The postconviction court again found that the second claim was facially insufficient and struck it without prejudice; however, the court did not provide Clayton a reasonable time limit within which to file an amended claim, a practice with which this court has expressed concern. See Brown v. State, 36 So. 3d 186 (Fla. 2d DCA 2010); Moreland v. State, 32 So. 3d 782 (Fla. 2d DCA 2010). The order also incorrectly advised Clayton that he had thirty days to appeal this nonfinal order to this court.

We dismiss this appeal for lack of jurisdiction. See Herron v. State, 34 So. 3d 206 (Fla. 2d DCA 2010). Because Clayton’s two-year time limit under rule 3.850 has presumably expired, this dismissal is without prejudice for Clayton to file an amended motion in the circuit court within thirty days of the date this opinion becomes final.

We note, however, that Clayton has argued on appeal that the postconviction court failed to comply with our prior mandate in 2D08-2020 as to the first claim that Clayton’s attorney should have sought Judge Estrada’s disqualification. On

Page 3

its surface, Clayton’s argument is persuasive. However, we are not convinced that the postconviction court disregarded our first opinion. The postconviction court’s nonfinal order explains that Clayton has a significant number of prior criminal cases in Polk and Highlands Counties during the period when the trial judge was a prosecutor. The postconviction court’s order did not require Clayton to provide record attachments to support his claim. Instead, the court, in seeking additional help, informed Clayton that he “should indicate, wherever possible and with as much specificity as possible, the nature of the charges, whether the charges involved felonies or misdemeanors, the year or time frame in which the trial judge prosecuted his case, and if at all possible the case number of the case or cases to which the Defendant is referring.” This request for additional information did not necessarily violate this court’s mandate in 2D08-2020. Ultimately, however, it will be up to the postconviction court, if it chooses to deny what this court has determined to be a facially sufficient claim, to attach records or to hold an evidentiary hearing to refute it.

Dismissed.

ALTENBERND, SILBERMAN, and MORRIS, JJ., Concur.

James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.

Appeal from the Circuit Court for Volusia County, J. David Walsh, Judge.

GRIFFIN, J.

Peter Price ["Price"] appeals his judgment and sentence for failure of a sex offender to properly register. He argues that the trial court erred by denying his motion to dismiss the charge. Specifically, he contends that because adjudication was withheld on his prior offenses after he entered a plea of nolo contendere, he was not convicted and, therefore, is not a sexual offender who is required to register under section 943.0435, Florida Statutes. We disagree, and affirm.

Page 2

Price was adjudicated guilty of two counts of sexual activity with a child by a person in familial or custodial authority in 1992 and sentenced to consecutive terms of nine years in the Department of Corrections followed by twenty years of probation on count one and twenty years of probation on count two. Price appealed, and this Court reversed and remanded for a new trial. Price v. State, 627 So. 2d 64 (Fla. 5th DCA 1993). On remand, in February of 1994, Price entered a plea of nolo contendere to two counts of the lesser included offense of lewd and lascivious assault upon a child in violation of section 800.04, Florida Statutes. The offenses were alleged to have occurred between September 22, 1987, and July 31, 1990. The trial court withheld adjudication and sentenced Price to five years of probation. Price successfully completed probation on May 4, 1999.

At the hearing on Price’s motion to dismiss, he described his experiences with registration:

Q. [W]hile on probation, were you eventually informed by your probation officer that a new law had come in existence in October of 1997 and you were going to have to register as a Sex Offender?

A. I showed up for my probation officer and I was taken from there to the Department of Motor Vehicles and had a State ID card issued as a Sex Offender. And when we got back I went, from there I went to Mr. Dubbeld’s office. And Mr. Dubbeld said, We’ll take care of that when we take care of sealing the record at the end of your probation.

Q. And did you successfully complete the full five years of your probation?

A. Yes, sir.

Q. And was there ever any Affidavit of Violation of Probation filed against you in that entire 60-month period?

Page 3

A. No.

Q. And once you got off of probation you had registered as the 1997 law said you were supposed to?

A. Yes, sir. They send me a thing in the mail every year and I send it back to them.

Q. Did there come a time when you were informed that there–if you were, I guess around 1998, maybe ’99, 2000, that if you were crime free for a period of 10 years that you could come off the Sex Offender registry?

A. Yes, sir. I was aware of that fact.

Q. That had been explained to you?

A. It had been explained to me.

Q. Did there then come a time from 2000, 2001, 2002, 3, 4, 5, that you were informed that the law had–Legislature had now again changed the law, and that you–it was no longer 10 years crime free, you would have to be 20 years crime free?

A. You gave me that information after I retained you.

Q. Okay. And that, just for that to get on the record, that was in 2005 that you met with me?

A. Yes.

….

Q. And then did there come a time in 2005, 2006, 2007 that again the Legislature changed the law, and that you now were required to not only register with the Department of Highway Safety and Motor Vehicles, which you had done; also with the Florida Department of Law Enforcement, which you had done and continue to do, but also twice a year with the sheriff’s office?

A. Yes, sir.

Q. And that was on your birth month?

Page 4

A. On my birth month and six months after.

Q. Okay. When you first came and met with me, do you remember that we put together a letter to then State Attorney Tanner saying that we wanted to test this law specifically as it related to you and how you found yourself in this circumstance from an allegation from back in 1987?

A. Yes, sir.

Q. And then did there come a time in 2008 when you did register with the sheriff’s office?

A. Yes, sir. I registered in March of 2008.

Q. Okay. And then you, according to the new law, 2006, 2007, you were required to register a second time six months later?

A. Yes, sir.

Q. And you chose at that time not to do that so as to trigger a test of your status?

A. Yes, sir.

Q. And once you were arrested–after being arrested you immediately went in and registered as–

A. The very next day.

The trial court entered an order denying Price’s motion to dismiss the charge. In the order, the trial court succinctly explained:

The court denies defendant’s motion. See, Fla. Stat. s. 943.0435 (1997) (sex offender reporting statute); Montgomery v. State, 897 So. 2d 1282 (Fla. 2005) (defendant’s plea of no contest followed by withhold of adjudication of guilt is a determination of guilt for the purpose of sentencing guidelines); State v. Mason, 979 So. 2d 301 (Fla. 5th DCA 20[0]8) (no contest plea constituted a prior “conviction” of the charge lewd and lascivious molestation within the meaning of Fla. Stat. s. 794.0115, the Dangerous Sexual Felony Offender Act); and Freeland v. State, 832 So. 2d 923 (Fla. 1st DCA 2002) (registration and reporting

Page 5

requirements of Fla. Stat. s. 943.0435 are regulatory and procedural in nature and do not violate the ex post facto clause.)

Price then entered a plea of nolo contendere to the charge of failure of a sex offender to properly register, reserving the right to appeal the trial court’s denial of his motion to dismiss the charge. The trial court adjudicated Price guilty and sentenced him to six months in the Volusia County jail.

Price argues on appeal that because adjudication was withheld on his prior offenses after he entered a plea of nolo contendere, he was not convicted and, therefore, is not a sexual offender who is required to register under section 943.0435, Florida Statutes.

Section 943.0435, Florida Statutes, entitled “Sex offenders required to report to the department; penalty,” was enacted in 1997 and provided in pertinent part:

(1) As used in this section, the term:

(a) “Sex offender” means a person who has been:

1. Convicted of committing, or attempting, soliciting, or conspiring to commit, any of the criminal offenses proscribed in the following statutes in this state or analogous offenses in another jurisdiction: s. 787.025, chapter 794, s. 796.03, s. 800.04, s. 827.071, s. 847.0133, s. 847.0135, s. 847.0145, or any similar offense committed in this state which has been redesignated from a former statute number to one of those listed in this subparagraph.

2. Released on or after October 1, 1997, from the sanction imposed for any conviction of an offense described in subparagraph 1. For purposes of subparagraph 1., a sanction imposed in this state or in any other jurisdiction includes, but is not limited to, a fine, probation, community control, parole, conditional release, control release, or incarceration in a state prison, federal prison, private correctional facility, or local detention facility.

Page 6

(b) “Convicted” means the person has been determined guilty as a result of a plea or a trial, regardless of whether adjudication is withheld.

(Emphasis added). In 1999, when Price’s probation ended, section 943.0435(1)(b) had been amended to read:

(b) “Convicted” means that, regarding the person’s offense, there has been a determination of guilt as a result of a trial or the entry of a plea of guilty or nolo contendere, regardless of whether adjudication is withheld.

Thereafter, in 2008¹, when Price was charged with failure of a sex offender to properly register, section 943.0435(1)(b) provided:

(b) “Convicted” means that there has been a determination of guilt as a result of a trial or the entry of a plea of guilty or nolo contendere, regardless of whether adjudication is withheld, and includes an adjudication of delinquency of a juvenile as specified in this section….

Under the 1999 and 2008 language of section 943.0435, “convicted” for purposes of sex offender registry included entry of a plea of nolo contendere, regardless of whether adjudication was withheld. Based upon the record, Price indisputably met the criteria under the 1999 and 2008 versions of section 943.0435 to be a sex offender who was required to register. Price relies on the fact that the language of the 1997 version of section 943.0435 does not mention a plea of nolo contendere where adjudication was withheld under the definition of “convicted.” Rather, it provides:

Page 7

“‘Convicted’ means the person has been determined guilty as a result of a plea or a trial, regardless of whether adjudication is withheld.”

The fact that Price met the criteria under the 1999 and 2008 versions of section 943.0435, rather than the 1997 version, is controlling because the sex offender registry requirements commenced when Price’s probation ended in 1999, and the State alleged in the information that Price failed to properly register in 2008. Even if the 1997 statutes were applicable, however, “convicted” for purposes of sex offender registry under the 1997 version of section 943.0435 also included the entry of a plea of nolo contendere where adjudication was withheld. In Montgomery v. State, 897 So. 2d 1282, 1286 (Fla. 2005), the Florida Supreme Court “h[e]ld that a no contest plea followed by a withhold of adjudication is a conviction for purposes of sentencing under section 921.0014.” Importantly, “[s]ection 921.0021 define[d] a conviction as ‘a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld.’” Id. at 1284. Since the definition of “convicted” in the 1997 version of section 943.0435 is essentially the same as the section 921.0021 definition of conviction, Montgomery supports the conclusion that “convicted” under the 1997 version of section 943.0435 included the entry of a plea of nolo contendere where adjudication was withheld.²

Page 8

AFFIRMED.

TORPY and ORFINGER, JJ., concur.

——–

James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.

Appeal from the Circuit Court for Orange County, Walter Komanski, Judge.

ORFINGER, J.

Tyrone English appeals his convictions of robbery with a firearm and aggravated battery with a firearm. We conclude that the trial court erred when it allowed a State witness to testify about the contents of a “be on the lookout” (“BOLO”) police dispatch. However, we affirm because the error was harmless beyond a reasonable doubt.

Page 2

As Loi Van Pham walked home from a store at midday, a man approached him from behind, grabbed his neck, put a gun to his temple, and took his cell phone. As the gunman began to leave, Pham knelt down on the sidewalk to retrieve the keys that he had dropped. He glanced up at the gunman, then about ten feet away, who walked back and struck Pham in the face with the gun. When Pham returned home, he reported the incident to the police, providing a physical description of the gunman and the stolen cell phone number. The responding deputy, Gary Dalton, dispatched a BOLO for a black male, approximately twenty years old, five feet and seven inches tall, thin build, wearing a black T-shirt and baggy blue jean shorts.

A few blocks from the scene of the robbery, Deputy Jerry Nelson saw a man, who matched the BOLO running down the street. Deputy Nelson and another K-9 deputy tracked the man to a nearby apartment complex where he had been detained by another deputy. The detained man, English, was sweating profusely, wearing a black shirt, dark jean shorts, and black shoes, and had a small bleeding cut on his hand. Deputy Dalton called the cell phone number of the stolen phone, which rang in English’s pants pocket, and spoke to the deputy who answered the phone. Pham was then taken to where English was detained, and identified English as the man who robbed him at gunpoint.

At trial, Pham described the gunman as a skinny, black male, wearing a dark colored wrap on his head, a black T-shirt, and long jean shorts. English testified and denied that he stole the phone from Pham that afternoon. Instead, he claimed that he obtained the phone from a man around 3:00 a.m. that morning for five dollars worth of crack cocaine. English also denied that he ran from a deputy, owned a gun, or had

Page 3

previously seen Pham. The jury found English guilty as charged of robbery with a firearm and aggravated battery with a firearm. This appeal followed.

English contends that the trial court reversibly erred when, over objection, a State witness was permitted to testify about the description of the suspect that was broadcast in a BOLO police dispatch. A trial court has “wide discretion in areas concerning the admission of evidence, and, unless an abuse of discretion can be shown, its rulings will not be disturbed.” San Martin v. State, 717 So. 2d 462, 471 (Fla. 1998). “If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980). Additionally, under section 924.33, Florida Statutes (2009), “[n]o judgment shall be reversed unless the appellate court is of the opinion, after an examination of all the appeal papers, that error was committed that injuriously affected the substantial rights of the appellant. It shall not be presumed that error injuriously affected the substantial rights of the appellant.”

“‘[T]he contents of a BOLO are generally inadmissible in that they contain incriminating hearsay details unnecessary to establish a logical sequence of events.’” Tillman v. State, 964 So. 2d 785, 788 (Fla. 4th DCA 2007). However, when as here, the victim testifies to the same information during the trial, courts have often considered the admission of the BOLO’s contents cumulative in nature, and, therefore, harmless. See Miles v. State, 839 So. 2d 814, 819 (Fla. 4th DCA 2003) (holding that police officer’s statement as to what witness told him was harmless because witness previously testified to same account and description). In addition, courts have considered the admission of the contents of a BOLO harmless error when an overwhelming amount of

Page 4

evidence of the defendant’s guilt existed as it did here. See Presley v. State, 839 So. 2d 813, 813-14 (Fla. 4th DCA 2003) (determining that erroneous introduction of victim’s out-of-court description harmless when suspect was found carrying bag containing items stolen from victim’s refrigerator). Cf.. Puryear v. State, 820 So. 2d 359 (Fla. 4th DCA 2002) (holding that erroneous introduction of out-of-court description by victim of assailant was not harmless where close case on issue of identification).

In the instant case, the trial court erred by admitting Deputy Dalton’s description of the suspect as part of his BOLO testimony. However, we conclude that this error was harmless. Prior to the deputy’s testimony, the victim testified to the same description. As a result, the erroneously admitted hearsay was cumulative to the victim’s testimony. Having reviewed the entire record, we conclude there is no reasonable probability that the error affected the verdict. See State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986).

AFFIRMED.

GRIFFIN and TORPY, JJ., concur.