text:
    Andrew J. SUMPTER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D01-3201.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2003.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appel-lee.
   PER CURIAM.

We affirm appellant’s conviction for armed robbery with a deadly weapon while wearing a mask to conceal his identity. We remand with directions to advise appellant in open court of the terms of his sentence, including the mandatory minimum sentence. See Fla. R.Crim. P. 3.700(b) (“Every sentence or other final disposition of the case shall be pronounced in open court....”); Gibbs v. State, 804 So.2d 456 (Fla. 4th DCA 2001); Gardner v. State, 699 So.2d 798 (Fla. 4th DCA 1997).

GROSS, MAY, JJ., and DAMOORGIAN, DORIAN, Associate Judge, concur.


source: Caselaw Access Project

author: J. LEONARD FLEET, Associate Judge.

license: Public Domain

text:
    Scott FRIEDMAN, Appellant, v. AMERICAN GUARDIAN WARRANTY SERVICES, INC. and First Community Insurance Company, Appellees.
    No. 4D02-588.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2003.
    Eric L. Stettin of Kuvin & Stettin, P.A., Fort Lauderdale, for appellant.
    George A. David of Gordon J. Evans, P.A., Coral Gables, for appellees.
   J. LEONARD FLEET, Associate Judge.

While working at a summer internship in Connecticut, appellant Scott Friedman (“Friedman”), a Florida resident, utilized the Internet to purchase an automobile service contract from appellee American Guardian Warranty Services, Inc. (“Guardian”). Friedman listed his temporary Connecticut address as his residence on the original application, but later amended it to reflect his domicile as being in Florida. The contract contained the following venue section clause:

Venue: The parties agree that for purposes of litigation the venue shall be in the appropriate judicial district in the County of DuPage, State of Illinois, unless venue is required to be in the state wherein the Service Contract is purchased. Venue is then deferred to the state’s requirements.

Approximately four months after the contract went into effect, Friedman’s automobile broke down. Contending the cause of the break down was a preexisting condition, Guardian refused to pay the cost of the repair. Friedman brought suit in Bro-ward County alleging, among other things, fraudulent inducement to contract. The trial court granted Guardian’s motion to dismiss on the basis of the venue selection clause. We affirm on the same basis.

In Florida, but for three exceptions, venue selection clauses are presumptively valid. Bombardier Capital, Inc. v. Progressive Mktg. Group, Inc., 801 So.2d 131, 134 (Fla. 4th DCA 2001). The three exceptions are (1) the forum selection clause is tainted by fraud, or (2) the forum selection clause is the product of overwhelming bargaining power on the part of one party, or (3) the forum selection clause is the sole basis upon which to create jurisdiction in a given forum. Id. at 134. Examination of the amended complaint, the dismissal of which led to the present appeal, fails to reveal allegations which would satisfy any of the three denominated exceptions.

Friedman alleges Guardian perpetrated a fraud upon him by withholding from him the policy “may be governed by Illinois law including the purported venue selection clause.” In essence, Friedman alleges fraud by omission rather than by commission. See State v. Mark Marks, P.A., 698 So.2d 533 (Fla.1997). The court cannot agree with this proposition. The venue selection paragraph is concise, obvious, and unambiguous.

Fraud based upon a failure to disclose material information exists only when a duty to make such disclosure exists. Id. at 539. This duty arises when one party has information which the other party has a right to know because there is a fiduciary or other relation of trust or confidence between the two parties. Id. Where a party in an arm’s-length transaction undertakes to disclose information, all material facts must be disclosed. Gutter v. Wunker, 631 So.2d 1117, 1118-19 (Fla. 4th DCA 1994).

The amended complaint does not allege a relationship of trust between Friedman and Guardian, therefore it does not properly allege fraud by concealment. It does not allege the wording of the venue selection clause is obfuscatory in nature or amounted to a partial disclosure of the terms of the contract. Because Friedman did not properly allege fraud by concealment or withholding, this case does not come within any of the exceptions to the presumptive enforceability of venue selection clauses. The court below was correct in granting the motion to dismiss.

Because the issue of venue is dispositive, discussion of the remaining points on appeal is not warranted. We note, however, because the case was not dismissed with prejudice, Friedman is free to pursue the matter in the State of Illinois.

AFFIRMED.

SHAHOOD and TAYLOR, JJ, concur.

      . Although not dispositive in this case, we further note that the contract granted Friedman a thirty-day right to examine the contract and, if dissatisfied, return it for a full refund of his money. The law presumes Friedman to be free of any incapacity that would prevent him from exercising this right. See Campbell v. Stoner, 249 So.2d 474, 476 (Fla. 3d DCA 1971) ("We first observe that there is a legal presumption of sanity in criminal and civil proceedings.”); see also Schaefer v. Voyle, 88 Fla. 170, 102 So. 7, 8 (1924).


author: LEVIN, STEVEN J., Associate Judge.

text:
    Hank MATHEW, Appellant, v. STATE of Florida, Appellee.
    No. 4D00-3084.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2003.

      Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Frank J. Ingrassia, Assistant Attorney General, Fort Lauderdale, for appellee.
   LEVIN, STEVEN J., Associate Judge.

Appellant, Hank Mathew, was convicted of false imprisonment, assault, and battery. Although Appellant has raised some six issues on appeal, we write to address only two — his claim that the trial judge abandoned his role of neutrality and so actively participated in the case that Appellant was denied a fair trial and his claim that the use of the domestic violence multiplier in sentencing was improper absent a jury finding that the domestic violence was committed in the presence of their child. We affirm the convictions, but reverse for resentencing without the use of the multiplier based upon Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

The evidence presented by the State established that Appellant and the victim had known one another for nearly seven years, were living together, and had a three-year-old daughter. Shortly before the incident which resulted in the criminal charges against him, Appellant showed up at the victim’s work place angry because the victim had seen him with another woman. As a result, the victim did not go home that night. Two days later, Appellant again angrily confronted the victim; this time, she obtained a restraining order and changed the locks to their apartment. Soon thereafter, the victim went to the apartment with the restraining order, a grocery bag, and the “911 telephone” given to her by a victims’ advocate group. Appellant, who was in the apartment with a firearm, proceeded to hit the victim and threatened to kill her. The couple’s child was present throughout the incident. The victim seized an opportunity to run out of the apartment and spent the next two to three weeks at a shelter. Appellant continued to page the victim at the shelter and told her that he knew the location of the shelter, threatening to harm her if she did not return home. Believing Appellant’s threats, the victim left the shelter and returned to the apartment. Appellant once again encountered the victim and ordered her into his car. The car was subsequently stopped and Appellant was arrested.

For his part, Appellant asserted that the events testified to by the victim never happened and that she fabricated the story because he had left her for another woman. Appellant admitted going to the apartment to pick up their daughter, but denied that he ever laid a hand on the victim. As for his contact with the victim after the incident, Appellant stated that she called him and asked him to pick her up from the shelter. On the day that Appellant was arrested, Appellant stated that the victim was not in the car against her will.

The jury convicted Appellant of false imprisonment, a lesser-included offense of the charged offense of kidnaping with a firearm; assault, a lesser-included offense of the charged offense of aggravated assault with a firearm; and battery. Although we affirm the convictions, the trial court’s actions warrant discussion.

It is the established law of this State that every litigant, ..., is entitled to nothing less than the cold neutrality of an impartial judge. It is the duty of the court to scrupulously guard this right of the litigant and to refrain from attempting to exercise jurisdiction in any manner where his qualification to do so is seriously brought into question. The exercise of any other policy tends to discredit and place the judiciary in a compromising attitude which is bad for the administration of justice.

State v. Steele, 348 So.2d 398, 401 (Fla. 3d DCA 1977).

During opening statement, direct examination, cross examination and closing argument, the trial judge repeatedly, and without objection, commented that he believed defense counsel’s actions were improper. The court refused to allow defense counsel to have a side bar as to objections and even made a reference in front of the jury that the trial was “starting to sound like Jerry Springer.” The court, without objection, interrupted defense counsel’s closing argument to inform defense counsel that the court believed defense’s argument was “inappropriate.” In addition, the trial court attempted to tell the prosecutor, in detail, what questions to ask in order to satisfy the “excited utterance” exception to hearsay.

Florida’s case law leaves little doubt that the remarks of which Appellant complains either should not have been made at all, i.e., the “Jerry Springer” comment, or should not have been made in the presence of the jury. For instance, in Jones v. State, 385 So.2d 132 (Fla. 4th DCA 1980), the judge made the following remarks to defense counsel in the presence of the jury:

THE COURT: Well, let me say this. Mr. Petersen, some of these questions you’re asking are argumentative.
MR. PETERSEN: Yes, sir.
THE COURT: And you can’t argue with your own witness. You can’t—
MR. PETERSEN: Your Honor, he’s a hostile—
THE COURT: Just a minute. Don’t interrupt me. The next time you do that it’s going to cost you. You understand?
MR. PETERSEN: Yes, sir.
THE COURT: Get your foot off the Bench. Stand up there like you know what you’re doing.

385 So.2d at 133. “The court then instructed defense counsel to avoid argumentative questions and to move on.” Id. Defense counsel continued to question the witness when, without an objection from the prosecutor, the court interrupted counsel to interject that the court believed that counsel was “being misleading.” Id.

This court acknowledged that reprimanding counsel in the presence of the jury was not always error, but held that the judge’s remarks went too far.

Guiding a trial is a constant challenge to the ability and integrity of the trial judge; it is a task, the difficulty of which is too often taken for granted. Invariably there may be instances where conduct of counsel is such as to try the patience of the court. The trial court must be equal to the task; and should endeavor to avoid the type of comment or remark that might result in inhibiting counsel from giving full representation to his client or that might result in bringing counsel into disfavor before the jury at the expense of the client.
We appreciate the strain under which the trial judge was compelled, by defense counsel's conduct, to preside over this trial. Nevertheless, we cannot condone his manifestation of that strain in the presence of the jury. Our review of the complete record in this case indicates anything but an impartial atmosphere in which the defendant received a fair trial. As was indicated in Hunter, supra, defense counsel’s conduct should not be visited upon the defendant to the extent that his fundamental right to a fair trial is abridged.

Id. at 134 (quoting Hunter v. State, 314 So.2d 174, 174-75 (Fla. 4th DCA 1975)); see also Simmons v. State, 803 So.2d 787, 788 (Fla. 1st DCA 2001)(reversing conviction for aggravated assault where the prosecutor ridiculed the defense, stating that “according to the defense, no crime occurred here because [the victim] said it was a butcher knife and [the eyewitness] said it was a steak knife,” and the judge, in overruling defense counsel’s objection that this was a mischaraeterization of evidence, stated “[i]t is accurate and dead on point. Sit down, Mr. Boothe.”). But see Grant v. State, 764 So.2d 804, 806 (Fla. 2d DCA 2000)(holding that judge’s interruption of defense counsel to directly question officer about his report and a vehicle’s ownership and judge’s statement to the effect that defense counsel’s subsequent question was “irrelevant” did not deprive defendant of fair trial and require reversal of convictions).

Appellant, in the case at bar, did not properly preserve this issue. For the most part, the remarks of which Appellant complains were not objected to at all. In the instances where defense counsel did make an objection, the objection was not that the judge was improperly demeaning counsel or Appellant in the presence of the jury or had abandoned his role of neutrality — the claim that Appellant makes in this appeal. See Jones v. State, 582 So.2d 110, 111 (Fla. 3d DCA 1991)(stating that “in order to preserve for appellate review alleged improprieties of a trial judge, an objection must be made contemporaneously with the prejudicial conduct or comments”); see also Pope v. Wainwright, 496 So.2d 798, 801 (Fla.1986). As the record is void of any contemporaneous objection, the actions of the trial court warrant reversal only if they constitute fundamental error.

“Fundamental error” has been defined “as error that ‘reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” Rimmer v. State, 825 So.2d 304, 323 (Fla.)(quoting Kilgore v. State, 688 So.2d 895, 898 (Fla.1996)), cert, denied, — U.S. —, 123 S.Ct. 567 (2002). “A fundamental error is one that undermines the confidence in the trial outcome and goes to the very foundation of a case. Often, it is the equivalent of a denial of due process.” Jassan v. State, 749 So.2d 511, 512 (Fla. 2d DCA 1999). Applying this definition, it is ‘dear that not every act or comment that might be interpreted as demonstrating less than neutrality on the part of the judge will be deemed fundamental error. Here, we hold that the trial judge’s comments, although improper, did not rise to the level of fundamental error.

Having affirmed Appellant’s convictions, we now address his claim that the sentence imposed for his false imprisonment conviction must be reversed. Appellant claims that the trial court improperly utilized the domestic violence multiplier to exceed the statutory maximum without an express finding by the jury that the domestic violence crime was committed in the presence of a minor child pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Section 775.082(3)(d), Florida Statutes (1999), which Florida’s courts have held establishes the statutory maximum for Apprendi analysis, provides that the máximum penalty for a third degree felony, including false imprisonment, is five years incarceration. See McCloud, v. State, 803 So.2d 821, 827 (Fla. 5th DCA 2001)(en bane), review denied, 821 So.2d 298 (Fla.), cert. denied, — U.S. —, 123 S.Ct. 553, 154 L.Ed.2d 455 (2002); see also Hindenach v. State, 807 So.2d 739 (Fla. 4th DCA 2002). The 81.83 month sentence imposed in reliance on the domestic violence multiplier for Appellant’s false imprisonment conviction clearly exceeds the five-year statutory maximum. The application of the domestic violence multiplier required a finding that the false imprisonment took place in the presence of the victim’s and Appellant’s toddler. See § 921.0024, Fla. Stat. (1999). The jury was instructed that, in order to convict Appellant of false imprisonment, they were required to find that Appellant “forcibly, secretly or by threat confined, abducted or imprisoned or restrained [the victim] against her will” and that Appellant had no authority to do so. At no point, did the jury have to consider whether the couple’s young child witnessed the confining or restraining. Cf. Henly v. State, 812 So.2d 549, 550 (Fla. 5th DCA 2002)(finding merit in defendant’s Apprendi challenge where sentence was enhanced for discharging a firearm and causing great bodily harm where there was no inherent finding by the jury in convicting defendant of aggravated battery that the use of a firearm had caused great bodily harm). Rather, this determination was necessarily made by the judge in applying the multiplier, which is clearly impermissible under Apprendi

Apprendi mandates that a jury find that the facts necessary to impose the domestic violence multiplier exist beyond a reasonable doubt. It does not matter that all of the evidence may support that proposition. The jury must make that determination. Therefore, this matter is remanded to the trial court for resentencing without the application of the domestic violence multiplier.

AFFIRM conviction; REMAND for re-sentencing.

FARMER and KLEIN, JJ., concur.


author: PER CURIAM.

text:
    TROPICAL REPUBLIC, INC., Appellant, v. TRANSWESTERN BEACH PLACE, LLC., Tropical Cigars At Beach Place, Inc., John Doe, individual or entity, and American Home Loan Mortgage Corp., Appellees.
    No. 4D02-959.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2003.
    Stephen J. Finta of the Law Offices of Stephen J. Finta, P.A., Fort Lauderdale, for appellant.
    Kimberly Hall Doyle and David B. Man-kuta of Atkinson, Diner, Stone, Mankuta & Ploucha, P.A., Hollywood, for appellee Transwestern Beach Place, LLC.
   PER CURIAM.

Affirmed. See § 620.8301, Fla. Stat. (2002)(“An act of a partner, including the execution of an instrument in the partnership name, for apparently carrying on in the ordinary course of partnership business or business of the kind carried on by the partnership, ... binds the partnership unless the partner had no authority to act for the partnership.... ”).

STEVENSON, GROSS and MAY, JJ., concur.


text:
    Hope MELVIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1451.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2003.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm Appellant’s conviction and sentence for driving while her license was revoked as a habitual offender, contrary to section 322.34(5), see State v. Craycraft, 817 So.2d 864 (Fla. 1st DCA 2002); Serra v. State, 835 So.2d 1277 (Fla. 4th DCA 2003), but remand for the trial court to correct the disposition order and the adjudication withheld order to reflect that Appellant entered a no contest plea, not a guilty plea.

POLEN, C.J., TAYLOR and HAZOURI, JJ., concur.


text:
    D.L., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D02-2433.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 2003.
    Richard F. Joyce, Miami, for appellant.
    Lawrence & Daniels; and Mercedes Scopetta; and Calianne P. Lantz, for ap-pellee.
    Before GREEN, and RAMIREZ, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Affirmed. See C.A.H. v. Department of Children and Families, 830 So.2d 939 (Fla. 4th DCA 2002).


author: WARNER, J.

text:
    S.D., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4831.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2003.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appel-lee.
   WARNER, J.

A juvenile appeals the trial court’s adjudication of delinquency based upon a finding that he burglarized a school cafeteria. He contends the evidence was insufficient to prove he had the intent to commit an offense when he entered the school grounds. We affirm the trial court’s ruling, concluding the evidence was sufficient when bolstered by the statutory presumption that proof of a stealthy entry of a building without consent is prima facie evidence of entering with the intent to commit an offense.

On Sunday, July 22, 2001, a security alarm was triggered at the North Andrews Gardens Elementary School. When Deputy Jordan of the Broward County Sheriffs office responded, he noticed some “subjects” jumping over a fence surrounding the school property into the backyard of a house bordering the school. He proceeded to the home and made contact with an occupant. The woman told the deputy that her husband had sent their children to the school to pick up garbage around one of the portables on the school grounds.

The deputy returned to the school, joined by a back-up deputy, and entered the school cafeteria which was in “shambles.” Deputy Jordan returned to the home where he was advised by the woman that her children had told her that they had entered the cafeteria and done some “stuff’ inside. Jordan also spoke with S.D. and the other children with the woman present. He learned that the children had entered the cafeteria and caused the damage. Jordan later testified that S.D. admitted he was involved along with the other children.

S.D. provided a taped statement to another detective the same day he was arrested. In the statement he states that he reluctantly went with his friend to see what the younger children were doing at the school. He jumped over the fence, and he and his friend found the cafeteria door open. S.D. did not indicate he participated in damaging the cafeteria.

The school principal testified that she had not given the children permission to be on the school grounds on that Sunday. After her testimony, the state rested, and defense counsel moved for a judgment of acquittal, claiming the state had failed to make a prima facie ease of burglary. The trial court denied the motion, defense counsel rested without calling any witnesses, and again moved for judgment of acquittal, which also was denied. The trial court found S.D. guilty of burglary and adjudicated him a delinquent. This appeal followed.

Section 810.02(l)(b)l, Florida Statutes (2001), requires a showing that a person entered “a dwelling, a structure, or a conveyance with the intent to commit an offense therein” in order to convict that person of burglary for an act committed after July 1, 2001. S.D. argues on appeal the evidence presented was insufficient to show he had the intent to commit an offense when entering the property. The state’s case, however, is aided by the statutory presumption contained in section 810.07(1) which treats “proof of the entering of [a] structure ... at any time stealthily and without consent of the owner or occupant [as] prima facie evidence of entering with intent to commit an offense.” The state proved that S.D. jumped the school fence on a Sunday, when the school was closed, without permission from the school staff, and ran away, again jumping over the fence, when an alarm was triggered. This is sufficient to constitute a stealthy entry. See Irvin v. State, 590 So.2d 9, 10 (Fla. 3d DCA 1991) (defining stealthy entry as “[a]ny secret, sly or clandestine act to avoid discovery and to gain entrance into or to remain ... without permission....”); M.S. v. State, 774 So.2d 777, 778 (Fla. 3d DCA 2000) (holding testimony that juvenile was seen running from vandalized, vacant condominium late at night demonstrated that juvenile’s entry was stealthy). Choosing a day when it was certain no one would be at the school and then running from the scene after the alarm was triggered demonstrates that S.D. was acting to avoid discovery and thus stealthily.

Furthermore, Deputy Jordan testified that S.D. admitted his involvement in messing up the cafeteria. Although S.D. challenges Jordan’s testimony, the trial court determines issues of credibility and believability. See Demps v. State, 462 So.2d 1074, 1075 (Fla.1984). In moving for judgment of acquittal, “a defendant admits all facts introduced into evidence and the court must draw every inference favorable to the prosecution.” Corpuz v. State, 733 So.2d 1048, 1049 (Fla. 4th DCA 1999) (quoting Pressley v. State, 395 So.2d 1175, 1177 (Fla. 3d DCA 1981)). As such, competent, substantial evidence existed to support S.D.’s adjudication of delinquency.

Affirmed.

POLEN, C.J., and GUNTHER, J, concur.


author: STEVENSON, J.

text:
    Leonard KAPLAN, as Personal Representative of the Estate of Lori Kaplan, Appellant, v. Sharman ALLEN, M.D., Appellee.
    No. 4D01-4628.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2003.

      John D. Kelner of the Law Office of John D. Kelner, Hollywood, for appellant.
    No brief filed for appellee.
   STEVENSON, J.

Lori Kaplan (the “decedent”) died after suffering fatal injuries in a car accident that occurred on November 16, 1999, in the City of Boca Raton, Florida. The decedent was reportedly coming from an appointment with her psychiatrist, Dr. Sharman Alien, appellee, when the accident occurred. At the time of her death, the decedent was also being treated by Dr. Linda Sherby, a psychologist.

Believing that the circumstances of the decedent’s death suggested suicide, and perhaps professional malpractice on the part of her psychiatrist, appellant, Leonard Kaplan, in his capacity as personal representative, requested copies of the decedent’s medical records from Dr. Allen. Dr. Allen declined to provide the medical records, citing statutory confidentiality under section 456.057(4), Florida Statutes (2001), and instead, provided a summary of the decedent’s treatment.

Without instituting a cause of action against Dr. Allen, Kaplan filed a complaint for pure bill of discovery in the circuit court, stating that he needed copies of the records and needed to depose Dr. Allen to determine whether the estate had a non-frivolous basis to bring a claim against him. Dr. Allen filed a motion to dismiss the complaint for pure bill of discovery, arguing that the complaint sought privileged documents and was deficient as a matter of law. The circuit court granted the motion to dismiss. Because we hold that the trial court did not err in dismissing the complaint, we need not address Dr. Allen’s claim that the records were confidential since that issue goes only to the extent of the relief that would be provided under the pure bill of discovery.

In order to be entitled to a pure bill of discovery, Kaplan must allege some circumstantial evidence of negligence adequate to justify the good faith filing of a negligence action. See Adventist Health Sys./Sunbelt, Inc. v. Hegwood, 569 So.2d 1295 (Fla. 5th DCA 1990). In Mendez v. Cochran, 700 So.2d 46 (Fla. 4th DCA 1997), this court stated:

We recognize that a bill of discovery is available as an aid in bringing or defending an action about to be commenced. It may be used to identify potential defendants and theories of liability and to obtain information necessary for meeting a condition precedent to filing suit. However, it may not be used “as a fishing expedition to see if causes of action exist.” Publix [Supermarkets, Inc. v. Frazier, 696 So.2d 1369, 1371 (Fla. 4th DCA 1997) ]. Neither is it available simply to obtain a preview of discovery obtainable once suit is filed.

Id. at 47 (citations omitted); see also Trak Microwave Corp. v. Culley, 728 So.2d 1177 (Fla. 2d DCA 1998); Publix Supermarkets, Inc., 696 So.2d at 1370-71.

Nothing in the record demonstrates a justification for Kaplan’s pure bill of discovery. Adventist Health System is distinguishable on the basis that, there, the plaintiff alleged that there was circumstantial evidence of negligence sufficient to justify the good faith filing of a medical malpractice claim. See 569 So.2d at 1296-97. Also, the plaintiffs medical experts alleged that there was some reason to believe that there was medical malpractice, but could not specifically “point it out” without deposing the doctors who treated the child at the hospital. Id. at 1296 n. 1.

Here, the record contains allegations suggesting only a possibility that some cause of action might exist against Dr. Allen. This is insufficient to justify the invocation of the “relatively rare” equitable pure bill of discovery. See JM Family Enters., Inc. v. Freeman, 758 So.2d 1175, 1176 (Fla. 4th DCA 2000). The record as it exists shows no more than that the tragic death of the decedent was due to an improper lane change; appellant may not obtain a pure bill of discovery as an investigative tool “to seek information that might uncover a potential claim.” Mendez, 700 So.2d at 47. Because of the speculative nature of Kaplan’s claims, the trial court did not err in dismissing the complaint for pure bill of discovery.

AFFIRMED.

WARNER and TAYLOR, JJ, concur.

      . The Traffic Homicide Investigation conducted by the Boca Raton Police Department reported that the accident occurred in the following manner: In the area of the accident, Yamato Road and Blue Lake Drive, is a six-lane highway consisting of a left, center and right through lane. In the 900 block of West Yamato Road, the left through lane ends and becomes a left turn lane and reduces the number of through lanes to two. Aaron John Singer, the other car accident victim, reported that the decedent was traveling westbound in the left turn lane at a high rate of speed, while he was traveling in the left through lane. The decedent swerved into the left through lane when the left turn lane ended, which resulted in both cars colliding. The decedent’s vehicle then struck a concrete curb, became airborne and rolled over several times before sliding down an embankment into a ditch. Another witness stated that the decedent accelerated even more when she saw that she "was running out of lane.” The same witness reported another version of how the accident occurred: that both cars entered the left through lane at the same time, which resulted in the accident. The decedent was transported to the Delray Medical Center and was pronounced dead later that day. The toxicology report showed no evidence of drugs (prescription or otherwise) or alcohol in the blood of the decedent or Singer.

      . In Adventist Health System, the Fifth District found that issuing a pure bill of discovery to the plaintifftmother whose child died while being treated in the hospital was proper.


text:
    Samuel WATSON a/k/a Steve Wilson, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4131.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2003.

      Carey Haughwout, Public Defender, and Gary Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Morrison v. State, 818 So.2d 432, 445 (Fla.), cert. denied, — U.S. -, 123 S.Ct. 406, 154 L.Ed.2d 308 (2002); Gutierrez v. State, 731 So.2d 94, 95 (Fla. 4th DCA 1999).

STEVENSON, GROSS and MAY, JJ., concur.


author: COPE, J.

text:
    Victor RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1479.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 2003.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.
    Before COPE, GREEN and RAMIREZ, JJ.
   On Rehearing Denied

COPE, J.

After careful consideration of the motion for rehearing, we adhere to our original opinion in the case.

The Florida Supreme Court has already decided how to interpret section 776.08, Florida Statutes. The court has said that “a ‘forcible felony’ includes burglary in Florida (Section 776.08, Florida Statutes) .... ” Falco v. State, 407 So.2d 203, 209 (Fla.1981).

The defendant argues that if the forcible felony statute is interpreted this way, then that would allow someone to use deadly force to prevent such crimes as burglary of an unoccupied structure or burglary of an unoccupied conveyance. The defendant reasons that such an eventuality is possible because the statute on justifiable use of force allows deadly force to be employed, in some circumstances, to prevent the commission of a forcible felony. See § 776.08, Fla. Stat.

The Falco decision demonstrates the incorrectness of the defendant’s argument. Falco was a homeowner who had been burglarized several times. He set a spring gun aimed at the point the burglar had been using for entry. While Falco was gone, the burglar came in and was fatally shot. Falco argued, among other things, that under the statute on justifiable use of force, § 776.012, Fla. Stat., he was allowed to use deadly force to prevent the commission of the forcible felony of burglary.

The Florida Supreme Court rejected the defendant’s argument — but not by modifying the definition of forcible felony to exclude burglary of an unoccupied structure. The correct analysis is found instead in the statute on justifiable use of force. As quoted in Falco:

Section 776.012..., entitled “Use of force in defense of person”, and regarding use of deadly force provides in pertinent part:
However, he is justified in the use of deadly force only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another or to prevent the imminent commission of a forcible felony.

407 So.2d at 205 (emphasis added).

The logic of Falco is that in order to use deadly force, there must be a reasonable belief that the use of deadly force is necessary to prevent the forcible felony of burglary. As the Falco decision demonstrates, the use of such force cannot be reasonably necessary where the structure is unoccupied.

Thus, the Falco decision establishes that burglary is a forcible felony as enumerated in section 776.08, Florida Statutes. Whether deadly force is permissible to defend against a forcible felony depends on the wording of the use of force statute (§ 776.012), not the forcible felony definition (§ 776.08).

Finally, we note in passing that the decision in Perkins v. State, 576 So.2d 1310, 1313 (Fla.1991), also mandates rejection of the defendant’s argument. The final clause of section 776¡08 states that a forcible felony includes “any other felony which involves the use or threat of physical force or violence against any individual.” The defendant argues that this phrase modifies the entire list of forcible felonies so that a listed felony is not “forcible” unless it involved the use or threat of physical force or violence against any individual. The Perkins decision takes a different view. Under Perkins, the final clause of section 776.08 is interpreted by looking at the statutory elements of non-enumerated crimes. 576 So.2d at 1313.

It would be illogical to apply Perkins to the listed forcible felonies. This would mean that the statutory elements of each listed forcible felony would be reviewed to see if each listed felony contained statutory elements involving the use or threat of physical force or violence. But if that were the test, then there would be no need for a list of forcible felonies.

The motion for rehearing is denied.


text:
    Jamalis HALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-3683.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2003.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. Hall v. State, 823 So.2d 757 (Fla.2002).

STEVENSON, GROSS and MAY, JJ„ concur.


text:
    Eduardo MORALES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-2390.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 2003.
    Joseph S. Roca, Hileah, for appellant.
    Charlie Crist, Attorney General, and Jill K. Traina, Assistant Attorney General, for appellee.
    Before COPE, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

Affirmed. See Lorenz v. State, 806 So.2d 620 (Fla. 3rd DC A 2002).


author: WHATLEY, Judge.

text:
    Lee Anthony HALL, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-916.
    District Court of Appeal of Florida, Second District.
    Feb. 26, 2003.

      James Marion Moorman, Public Defender, and Paula C. Coffman, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Scavino Sieg, Assistant Attorney General, Tampa, for Ap-pellee.
   WHATLEY, Judge.

Lee Anthony Hall appeals his convictions and sentences for attempted second-degree murder, robbery, and armed burglary. We find merit only in his argument that his sentences are erroneous.

The trial court sentenced Hall as a prison releasee reoffender, section 775.082(9)(c), Florida Statutes (1999) (Prison Releasee Reoffender Punishment Act [PRRPA]), to life in prison with a minimum mandatory term of thirty years for the attempted second-degree murder, to be served concurrently with life sentences for the robbery and the armed burglary. The court also imposed a minimum mandatory term of twenty-five years’ imprisonment on each count pursuant to section 775.087(2), Florida Statutes (1999) (10-20-Life).

The trial court erred in sentencing Hall because the PRRPA only authorizes the trial court to deviate from its sentencing scheme to impose a greater sentence of imprisonment. Grant v. State, 770 So.2d 655 (Fla.2000). It is error to sentence a PRRPA defendant to a concurrent term under another sentencing statute that is either less than or equal to the PRRPA term. See id.; Smith v. State, 813 So.2d 1002 (Fla. 4th DCA 2002).

Accordingly, we affirm Hall’s convictions but reverse his sentences and remand for resentencing.

Affirmed in part; reversed in part; and remanded for resentencing.

NORTHCUTT and STRINGER, JJ., Concur.


author: KELLY, Judge.

text:
    Gloria M. ROBERT, as Trustee of the Rolf Robert Trust, Appellant, v. DEERY & HARRIS INVESTMENTS, INC., a Florida corporation, Appellee.
    No. 2D02-2700.
    District Court of Appeal of Florida, Second District.
    Feb. 26, 2003.
    Gale M. Bobenhausen of Kimpton, Burke & Bobenhausen, P.A., Clearwater, for Appellant.

      Leonard S. Englander of Englander & Fischer, P.A., St. Petersburg, for Appellee.
   KELLY, Judge.

Gloria Robert appeals from a temporary injunction enjoining her from constructing a driveway onto an easement held by Deery & Harris Investments, Inc. We find no merit in Robert’s arguments and affirm. With regard to Robert’s contention that the trial court erred in establishing a $2000 bond without sufficient evidence, we note that Robert may seek an increase of the bond in the trial court if proven to be necessary.

Affirmed.

ALTENBERND, C.J., and CASANUEVA, J., Concur.


text:
    SUNSET HARBOUR NORTH CONDOMINIUM ASSOCIATION and State of Florida, Department of Revenue, Appellants, v. Joel ROBBINS, Property Appraiser for Dade County, Appellee.
    Nos. 3D02-2258, 3D02-2316.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 2003.
    Charlie Crist, Attorney General, and Mark T. Aliff, Assistant Attorney General (Tallahassee); Arnaldo Velez, Coral Gables, for appellants.
    Robert A. Ginsburg, County Attorney, and Thomas W. Logue and Jay W. Williams, Assistant County Attorneys, for appellee.
    Before GREEN, RAMIREZ, JJ„ and NESBITT, Senior Judge.
   PER CURIAM.

The taxpayer, a condominium under construction, challenged property appraiser’s valuation for the tax year 1997 in the amount of $22,000,000.00, arguing that, pursuant to Section 192.042, Florida Statutes, it should have received a zero -value for ad valorem taxation because it was not “substantially completed” as of January 1 of the tax year. The property appraiser put up a general denial with an affirmative defense asserting the constitutional invalidity of Section 192.042, Florida Statutes, supra. The trial judge agreed with the property appraiser and held Section 192.042 unconstitutional. We agree with the trial court.

An extended discussion of the issue is unwarranted in light of Judge Fletcher’s able, comprehensive and well-reasoned opinion en banc for this Court in Fuchs v. Robbins, 738 So.2d 338, 341-348 (Fla. 3d DCA 1999). We incorporate and adopt Judge Fletcher’s opinion as though it were set out fully. Employing that reasoning and analysis, we agree with the trial judge and hold that Section 192.042, Florida Statutes is unconstitutional.

Affirmed.

      . That en banc decision was reversed by the Supreme Court in Fuchs v. Robbins, 818 So.2d 460 (Fla.2002), on the basis that, under the procedural setting in Fuchs, the property appraiser did not have standing to challenge the constitutionality of the statute. The parties here do not dispute the property appraiser’s right to raise the unconstitutionality of the statute when defending against the taxpayer's challenge to the appraiser's assessment.


text:
    Tyrone HATCHER, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3539.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2003.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Leonard v. State, 760 So.2d 114 (Fla.2000); Maddox v. State, 760 So.2d 89 (Fla.2000); Robinson v. State, 373 So.2d 898, 902 (Fla.1979); Garrett v. State, 788 So.2d 328 (Fla. 4th DCA 2001).

WARNER, KLEIN and MAY, JJ„ concur.


author: STONE, J.

text:
    MILLER & SOLOMON GENERAL CONTRACTORS, INC., a Florida Corporation, and Hartford Accident and Indemnity Company, a Surety, Appellants, v. BRENNAN’S GLASS CO., INC., a Florida Corporation, Appellee.
    No. 4D01-4940.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2003.

      Gary L. Brown of Siegfried, Rivera, Lerner, De La Torre & Sobel, P.A., Coral Gables, for appellants.
    Kevin J. Taylor and Larry R. Leiby of Leiby, Taylor, Stearns, Linkhorst and Roberts, P.A., Fort Lauderdale, for appel-lee.
   STONE, J.

We affirm a non-final order denying Appellants’ motion to dismiss or transfer venue.

Appellant, Miller & Solomon, is the contractor in a construction project. Hartford, the surety, had filed a payment bond for the Broward county project. Appel-lees, subcontractors, sued Miller & Solomon for breach of contract and to enforce a claim of lien. The lien foreclosure was transferred to the Hartford bond pursuant to section 713.23(2), Florida Statutes (2001).

Appellants insist that venue lies in Dade county, rather than Broward, under the terms of the subcontract with Appellees. The trial court correctly recognized that Hartford was not a party to the subcontract and that the claim of lien and bond were properly filed in Broward. See Am. Ins. Co. v. Joyner Elec., Inc., 618 So.2d 799, 800 (Fla. 1st DCA 1993). The venue provision in the subcontract, here, does not apply to the claim on the bond. That being the case, Appellants also requested that the contract count of the complaint be severed and that the separate count be transferred to Dade county. The court denied the motion. The court recognized that, taken alone, the contract claim should be filed in Dade county pursuant to the contract provision, but that in this case, the two counts should not be severed.

The parties agree that the bond action arises out of section 713.23, Florida Statutes. Subsection 713.23(l)(f) provides that the bond “must not contain any provisions restricting ... the venue of any proceeding. ...” Subsection 713.24(3) provides for venue in the county where the security was deposited.

We note that the cases cited by Appellants, Deeb, Inc. v. Board of Public Instruction of Columbia County, 196 So.2d 22 (Fla. 2d DCA 1967), and Walbridge Aldinger Co. v. Roberts Plumbing Contractors, Inc., 800 So.2d 285 (Fla. 3d DCA 2001), are distinguishable in that the sureties there were either parties to the subcontracts or named in the venue provisions.

Appellants also assert that the bond, here, is really a payment bond issued under section 713.23, Florida Statutes, and should be distinguished from a case filed against a lien transfer bond issued under section 713.24, Florida Statutes. But we note that this case involves not only a claim against a payment bond, but also a claim of lien transferred to the bond. Further, and in any event, the venue provision in section 713.23(l)(f) place venue in Bro-ward county.

The trial court cited Halls Ceramic Tile v. Tiede-Zoeller Tile Corp., 522 So.2d 111 (Fla. 5th DCA 1988), in holding that the bond action was properly brought in Bro-ward county. In that case, the subcontract contained a forum selection clause providing that litigation arising out of the contract would take place in New York. Id. at 112. The subcontractor sued the contractor and its surety. The Fifth District held that the bond action had to be brought in Orange county, Florida, where the bond was posted, and that despite the forum provision in the subcontract, the claim against the contractor had to be brought in the same forum as the bond claim to avoid conflicting results. Id. The court cited an opinion of this court in holding that, under Florida law, an action to enforce a bond must be brought where the bond was recorded. Morganti S., Inc. v. Hardy Contractors, Inc., 397 So.2d 378 (Fla. 4th DCA 1981); but see Walbridge, 800 So.2d at 288 (opining that the Halls Ceramic Tile court confused jurisdiction with venue and, thus, misapplied Morgan-ti ). The Fifth District in Halls Ceramic Tile also relied on sections 713.24(3) and 713.23(g), Florida Statutes (1985), in holding that venue was proper where the bond was posted. Those subsections substantially mirror sections 713.24(3) and 713.23(f), Florida Statutes (2000), respectively.

We recognize that a plaintiff should not be permitted to thwart a venue provision in a contract by joining a contract claim with a separate cause of action. See Intercapital Funding Corp. v. Gisclair, 683 So.2d 530 (Fla. 4th DCA 1996)(ac-knowledging the general principle that a choice of law provision may not be thwarted by joining causes of action that would try to undo the intent of the provision); see also Kilpatrick v. Boynton, 374 So.2d 557 (Fla. 4th DCA 1979); Allstate Ins. Co. v. Briggs, 355 So.2d 499 (Fla. 1st DCA 1978).

Here, however, Appellees’ action on its lien claim is properly filed in Broward, and the bond to which it was transferred was filed in Broward. Multiple suits would split the action and open the door to conflicting results. Therefore, since venue on the bond count is in Broward county, we conclude that the trial court did not abuse its discretion in denying the motion to transfer venue of the entire action or to sever counts. See Girdley Constr. Co. v. Architectural Exteriors, Inc., 517 So.2d 137 (Fla. 5th DCA 1987)(holding that even though parties agreed venue would lie in Orange county as to one count, venue provision should not be enforced since transferring venue as to that count would result in splitting of causes of action); Carlson-Southeast Corp. v. Geolithic, Inc., 530 So.2d 1069, 1072 (Fla. 1st DCA 1988)(not-ing that parties to a contract may agree as to venue and such an agreement will be enforced unless it appears that multiple suits will be filed and enforcement of venue provision could lead to different results in different courts).

As to all other issues argued, we also find no reversible error or abuse of discretion.

SHAHOOD and MAY, JJ., concur.


text:
    Keith Lamar SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2750.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 2003.
    Keith Lamar Smith, in proper person.
    Charlie Crist, Attorney General, for ap-pellee.

      Before SCHWARTZ, C.J., and SHEVIN, and WELLS, JJ.
   PER CURIAM.

Affirmed. See Massey v. State, 609 So.2d 598 (Fla.1992).


text:
    Kenneth D. KOSSOW, an individual, Petitioner, v. SNAPP INDUSTRIES, INC., a Florida corporation, Respondent.
    No. 4D02-4500.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2003.
    Kenneth D. Kossow, Hollywood, pro se.
    Denise V. Powers of Denise V. Powers, P.A., Coral Gables, for respondent.
   PER CURIAM.

We grant the petition for writ of certio-rari and quash the order denying petitioner’s motion for reconsideration seeking to file a revised initial brief. On remand, petitioner shall be granted leave to file an amended initial brief and proceed with his appeal in the circuit court.

STONE, STEVENSON and GROSS, JJ., concur.


text:
    Aaron SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4465.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2003.
    Aaron Smith, Arcadia, pro se.
    Charlie Crist, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Aaron Smith, appeals an order of the trial court summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Smith timely filed a motion alleging the state’s two chief witnesses recanted their trial testimony and acknowledged that such testimony was untruthful. Smith’s motion was denied because he failed to attach affidavits from the recanting witnesses. Because we find the motion legally sufficient, we reverse and remand for further proceedings. See McLin v. State, 827 So.2d 948 (Fla.2002); Valle v. State, 705 So.2d 1331 (Fla.1997).

Valle held that it was error for the trial court to summarily deny a Rule 3.850 motion on the basis that no supporting affidavits had been submitted, as Rule 3.850 does not require such filing. See 705 So.2d at 1333-34. Rather, Rule 3.850 requires that the movant include a brief statement of facts in support of the motion. See id. at 1334.

Smith alleged that the recanting witnesses “essentially supported the State’s charge of aggravated battery.” He alleged further that absent the testimony of the recanting witnesses the state’s case was “barren of any evidence” to support his conviction. Compare Cunningham v. State, 748 So.2d 328, 331 (Fla. 4th DCA 1999) (holding motion legally insufficient where defendant alleged that a witness’ testimony “would have closed the window of opportunity on the state’s case”). These are legally sufficient allegations to require a hearing.

Having concluded that Smith’s motion is legally sufficient, the case is reversed and remanded for further proceedings as contemplated by McLin.

WARNER, FARMER and MAY, JJ., concur.


text:
    Walter GRIGGS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4086.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2003.
    Walter Griggs, Moore Haven, pro se.
    No appearance required for appellee.
   PER CURIAM.

We reverse an order denying Appellant’s motion to correct sentence. The record reflects that the amount of time credited for time served does not include the time Appellant served in county jail from the date Appellant was adjudicated and returned to custody (January 8, 2002) to await sentencing through the date of sentencing (March 28, 2002). In all other respects, we find no reversible error. We, accordingly, remand for further proceedings.

STONE, FARMER, and KLEIN, JJ., concur.


author: KLEIN, J.

text:
    James G. DODRILL, II, Esq., Appellant, v. INFE, INC., f/k/a Infe. Com., Inc., a Florida Corporation, Appellee.
    No. 4D02-3413.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2003.
    James G. Dodrill, II of James G. Dodrill, II, P.A., Boca Raton, for appellant.
    Jayme Manzo Deere and Steven G. Schwartz of Schwartz & Horwitz, P.A., Boca Raton, for appellee.
   KLEIN, J.

Appellant plaintiff obtained a default judgment for attorney’s fees against the defendant, but the trial court granted defendant’s rule 1.540(b) motion to vacate based on excusable neglect. We affirm, addressing only one issue, which is whether the sworn statement filed in support of the motion to vacate was technically proper.

Plaintiff argues that the sworn statement, which is titled “Affidavit,” is deficient because of the following paragraph contained below the signature of the affiant and above the signature of the notary public.

I hereby certify that on this day, before me, an officer duly authorized to administer oaths and take acknowledgments, personally appeared, THOMAS RICHFIELD, known to me to be the person described in and who executed the foregoing Affidavit, who acknowledged before me that he executed the same, that I relied upon the following form of identification of the above named person: THOMAS RICH-FIELD, and that an oath was/was not taken. (Emphasis added.)

The emphasized portion did not state whether an oath was or was not taken, and plaintiff contends that this was the equivalent of an unsworn document. It therefore does not, according to plaintiff, satisfy the requirement that a motion to vacate a default must be under oath. Hall v. Byington, 421 So.2d 817 (Fla. 4th DCA 1982). The document, however, states in the first paragraph:

BEFORE ME, the undersigned authority, personally appeared THOMAS RICHFIELD, having personal knowledge of the below-described matters and being duly sworn, deposes and says:

This first paragraph qualifies this as a verified document under oath under section 92.525(4)(c), which states that a verified document means that the person “must state under oath or affirm that the facts or matters stated or recited in the document are true, or words of that import or effect.”

It was unnecessary for this sworn statement to be notarized. Mieles v. S. Miami Hosp., 659 So.2d 1265 (Fla. 3d DCA 1995)(medical expert’s sworn statement attached to medical malpractice plaintiffs notice of intent did not have to be notarized). The final paragraph, which is ambiguous, is accordingly of no import.

Finding no abuse of discretion, we affirm.

STEVENSON and GROSS, JJ., concur.


author: STRINGER, Judge.

text:
    Horace BLUDSAW, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3574.
    District Court of Appeal of Florida, Second District.
    Feb. 28, 2003.

      James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appel-lee.
   STRINGER, Judge.

Horace Bludsaw seeks review of the trial court’s order denying his motion to suppress cocaine seized during a search conducted after his vehicle was stopped for traffic violations. Bludsaw argues that the trial court erred in determining that the police had a reasonable suspicion of criminal activity that would justify his detention after the initial traffic stop. We agree and reverse.

On November 15, 2000, at about 10 p.m., Detective Charles Massucci and Officer Kevin Schoolmeesters conducted surveillance on a Days Inn. Massucci had received a citizen’s complaint about nonspecific drug activity at the hotel. Minutes after arriving at the hotel, Massucci and Schoolmeesters observed Bludsaw pull into the parking lot with his wife and two children. Bludsaw got out of his vehicle and disappeared from sight for a few minutes.

When Bludsaw returned to his vehicle, Officer Schoolmeesters followed him. Shortly thereafter, Schoolmeesters stopped Bludsaw for three traffic violations: operating with a defective brake light, failing to stop at a stop sign, and running a traffic light. Detective Massucci was also present at the stop.

Detective Massucci told Bludsaw that the traffic violations provided a basis for the stop, but he believed Bludsaw had engaged in drug activity at the Days Inn. Detective Massucci asked Bludsaw if he could search his vehicle, but Bludsaw refused to consent. In response to the detective’s accusations about drug activity, Bludsaw offered the explanation that he had gone to the hotel to visit someone named “E.” but that “E.” was not available. Detective Massucci testified,

Based on a situation totally separate of this, I know E. I know he’s a drug dealer. I know he stays at hotel rooms. My level of suspicion, which is already high, went to the point in my mind, as a police detective, he had purchased drugs. At that point I advised him that I was going to detain him and call for a K9 unit.

Detective Massucci then patted down Bludsaw and escorted Bludsaw to the patrol car to wait for the K9. The detective explained, “There’s a potential — [I] put him in the back seat unhandcuffed because at that point if I do find drugs with a K9, he can’t run anywhere.”

After being in the back of the patrol car for about five to ten minutes, Bludsaw agreed to reveal the location of the drugs if Massucci would not involve his family. Detective Massucci found narcotics in the driver’s side door, where Bludsaw told him to look. A complete search of the vehicle revealed a second package of cocaine.

Appellate review of a motion to suppress is a mixed question of law and fact. The trial court’s findings of fact will be sustained if they are supported by competent, substantial evidence. State v. Glatzmayer, 789 So.2d 297, 301 n. 7 (Fla.2001). The trial court’s application of the law to the factual findings, however, is reviewed de novo. Id.

The police officers’ initial stop of Bludsaw was legal based on the evidence that Bludsaw committed several traffic infractions. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). The fact that Detective Massucci’s trae motivations for conducting the stop were suspect does not render the stop illegal because there was a valid basis for it. Moreland v. State, 552 So.2d 937, 938 (Fla. 2d DCA 1989). After the initial traffic stop, however, the police conducted a second detention of Bludsaw that was not legal. This detention occurred after Blud-saw responded to Detective Massucci’s accusation that he was engaging in drug activity at the Days Inn. When Bludsaw told Detective Massucci that he had gone to visit someone named “E.,” Detective Massucci advised Bludsaw that the detective “was going to detain him and call for a K9 unit.” Detective Massucci then patted down Bludsaw and escorted Bludsaw to the back of the patrol car. At this point, Detective Massucci admitted that the detention was no longer for the purpose of writing a traffic citation but for the purpose of conducting a narcotics investigation.

Because the detention was no longer for the purpose of writing a traffic citation, it was legal only if the police had a reasonable suspicion of criminal activity. Cresswell v. State, 564 So.2d 480, 481 (Fla.1990); Joseph v. State, 588 So.2d 1014, 1015 (Fla. 2d DCA 1991). The State argues that the following evidence gave Detective Massucci a reasonable suspicion of criminal activity: (1) Bludsaw drove up to a hotel room, disappeared for a few minutes, and returned to his vehicle; (2) when questioned, Bludsaw stated that he was there to visit “E.” whom the detective knew to be a drug dealer; and (3) the anonymous tip that there was drug activity at the hotel. However, merely visiting a location where drug activity is suspected does not give rise to a reasonable suspicion of criminal activity. Ramsey v. State, 766 So.2d 397, 399 (Fla. 2d DCA 2000); Martin v. State, 521 So.2d 260, 261 (Fla. 2d DCA 1988); Mosley v. State, 519 So.2d 58, 59 (Fla. 2d DCA 1988).

Because the police lacked a reasonable suspicion of criminal activity, the detention of Bludsaw was illegal, and Bludsaw’s subsequent consent to search his vehicle is involuntary because it was a product of the illegal detention. Reynolds v. State, 592 So.2d 1082, 1086 (Fla.1992). Accordingly, we reverse the trial court’s order denying Bludsaw’s motion to suppress.

Reversed and remanded.

WHATLEY and NORTHCUTT, JJ., concur.


author: GREEN, OLIVER L., Senior Judge.

text:
    John W. ANDREWS and Sue Andrews, Appellants, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee.
    No. 2D01-4852.
    District Court of Appeal of Florida, Second District.
    Feb. 28, 2003.

      J. Troy Andrews of Andrews Law Group, Tampa, for Appellants.
    Guy E. Burnette, Jr., and Yoniece M. Dixon of Butler Pappas Weihmuller, Katz Craig, LLP, Tallahassee, for Appellee.
   GREEN, OLIVER L., Senior Judge.

John W. Andrews and Sue Andrews appeal the directed verdict entered in favor of United Services Automobile Association (USAA) in their action against USAA for breach of the insurance contract covering property they used as a rental residential dwelling. We reverse.

USAA moved for a directed verdict on the issue of whether the Andrews’ property was vacant for purposes of the following clause, which excluded coverage for “loss on the Described Location if the dwelling has been vacant for more than 30 consecutive days immediately before the loss. A dwelling being constructed is not considered vacant.” In directing a verdict in favor of USAA, the trial court found that the dwelling was not being constructed and that it was vacant. While the trial court correctly directed a verdict on the issue of whether the dwelling was being constructed, it abused its discretion in directing a verdict on the issue of whether the dwelling was vacant because different conclusions can be drawn from the evidence in this case on that issue. See Moisan v. Frank K. Kriz, Jr., M.D., P.A., 531 So.2d 398, 399 (Fla. 2d DCA 1988). Thus, whether the Andrews’ dwelling was vacant was an issue for the jury to decide.

Accordingly, we reverse and remand for a new trial.

DAVIS and COVINGTON, JJ. Concur.


author: DAVIS, Judge. ALTENBERND, Chief Judge,

text:
    Ifeanyi EJIEGO, Appellant, v. Sebrina VICKERS, Appellees.
    No. 2D01-5494.
    District Court of Appeal of Florida, Second District.
    Feb. 28, 2003.

      Brian J. Almengual, of Almengual & Warner, Tampa, for Appellant.
    No appearance for Appellee.
   DAVIS, Judge.

Ifeanyi Ejiego challenges the final judgment ordering him to pay $930.84 per month in child support. He argues that the court’s order is not supported by the record and that the court erred in making its calculations. We agree.

A paternity test determined that Ejiego is the biological father of the minor child. At the support hearing, Ejiego presented his past years’ income tax returns, reflecting that his annual income, as he reported it to the IRS, varied from approximately $9000 to $12,000. The trial court clearly disbelieved Ejiego’s testimony and his tax returns and, accordingly, imputed additional income to Ejiego.

However, it is not entirely clear how the court arrived at the $4566.64 monthly gross income it imputed to Ejiego. In its order, the court found: “Petitioner’s probable earnings from the operation of his cab, after considering his gross receipts minus ordinary and necessary expenses, is $3,526.64 a month ($5,638.97 less $1,213.33 for fees, less $130.00 for maintenance/repairs, less $770.00 for gas/oil).” Although the $5638.97 figure would appear to be the result of the court’s calculation of Ejiego’s gross receipts, neither the order nor the record supports this figure.

The order also states that Yellow Cab’s operation manager testified that Ejiego averaged about ten fares a day. However, Yellow Cab’s operation manager did not so testify. He testified that from April 2, 2001, through June 4, 2001, Ejiego took 566 calls. Even if all of those calls resulted in actual fares, which is not clear from the record, 566 calls divided by 63 days (April 2 — June 4, 2001) yields a total of 8.98 calls per day, not ten fares per day, as the court found. The court further found that the average amount of a cab fare was $18.59. However, this figure was an average of fares that were charged either by credit card or voucher; it does not include cash fares, which would, based on the testimony, likely be less. Even applying the court’s estimated ten calls per day figure, multiplying by $18.59 (the court’s average fare figure), and then computing that figure on a monthly basis, one does not arrive at the $5638.97 figure that the court calculated. Rather, using the court’s figures, Ejiego’s total monthly gross income comes to $5515.03.

The court also concluded that the two cabs that Ejiego leased to other drivers generated a total income to Ejiego of $1040 per month. However, in arriving at this figure, the court made no allowance for the repair/maintenance costs to Ejiego, which Ejiego testified was his responsibility under the lease agreements.

Because the record does not support the court’s findings and calculations, those findings and calculations provide us no guidance in determining the propriety of the court’s imputation of income to Ejiego. See Bimonte v. Martin-Bimonte, 679 So.2d 18 (Fla. 4th DCA 1996). Accordingly, we reverse and remand for further findings.

CANADY, J., Concurs.

ALTENBERND, C.J., Concurs specially.

ALTENBERND, Chief Judge,

Concurring.

I fully concur in this opinion. I write only to note that Mr. Ejiego testified that he drives his cab sixteen to eighteen hours per day, seven days per week. The child support calculations were apparently based on this work schedule. Although I do not believe a trial court abuses its discretion when it decides to calculate child support on the assumption that a person works a few hours over the regular forty-hour work week, it gives me pause when the trial court imputes income on a work week that exceeds eighty hours. In the long run, such an assumption seems likely to result in chronic enforcement issues that will cause the case to return repeatedly to the trial court.

      . In its order, the court observed that Ejiego had testified that he works seven days per week. Accordingly, in attempting to determine how much Ejiego earned each day, we assumed a seven-day work week, which, from April 2, 2001, through June 4, 2001, yields a total of sixty-three work days.


author: SHAHOOD, J.

text:
    Tillie BLUMENFELD, Appellant, v. Neil CHRYSTAL and Laura Chrystal, Appellees.
    No. 4D02-3020.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2003.
    Alan R. Burton, Fort Lauderdale, for appellant.
    Martin Levinson, Miami, for appellee Laura S. Chrystal.
   ON MOTION FOR REHEARING

SHAHOOD, J.

We deny appellee’s, Laura Chrystal, motion for rehearing, withdraw our prior opinion and substitute the following opinion in its place.

Tillie Blumenfeld, appellant, challenges an order holding her in contempt of a final judgment of divorce to which she was not a party. The final judgment imposed a ten-day jail sentence if she failed to comply with the final judgment within three days of the contempt order. We reverse.

Appellant is the mother of the former husband in the dissolution action. In January of 2002, the trial court entered a final judgment of dissolution of marriage between the former husband and former wife. Prior to the dissolution, appellant had established custodial accounts for her grandchildren, the children of the parties to the dissolution action. The final judgment provided that all custodial accounts held for the minor children were to be put in the former wife’s name, including the accounts at Quick & Reilly which are or were in the former husband’s name. For a brief period, appellant had designated the former husband, appellant’s son, as custodian, but the accounts were returned to the appellant before the final judgment was entered.

The former wife, appellee, moved for determination of the disposition of the funds in the custodial accounts, alleging that after the final judgment was entered, the appellant withdrew money from the custodial accounts and transferred the funds to a bank account in her and the former husband’s names.

A hearing was set for July 19, 2002. Before the hearing, the appellant and the appellee submitted an agreed order prohibiting the appellant from further transferring the funds. The appellant then sought to continue the July 19, 2002, hearing because she would be out of the country. After a hearing on that motion, the court entered an order continuing the hearing to August or September.

Thereafter, the appellee retained new counsel who filed a motion for emergency hearing for civil contempt and set the hearing for July 19, 2002. The motion requested that the court order the appellant to turn over the funds that are the subject of the agreed order. The motion also requested the court to hold the former husband and appellant in civil contempt.

The hearing was held on July 19, 2002. An attorney for the appellant was present, who informed the court that an agreed order had been entered providing that the funds would not be transferred until a full evidentiary hearing was held. The attorney also reminded that court that it had just signed an order continuing the July 19, 2002 hearing. The court heard testimony with regards to the child support issue and then entered an order requiring the appellant to release account funds to the former wife within three days, and holding her in contempt and incarcerating her for ten days should she fail to do so.

In this case, the notice of hearing was served on appellant on July 12, 2002. Appellant’s counsel appeared at the hearing held on July 19, 2002. However, appellant was not given an opportunity to be heard due to the fact that she was out of the country. The same trial judge who signed the order on July 11, 2002, continuing the hearing set for July 19, 2002, because appellant would be out of the country, held the hearing on July 19, 2002 and over objection by appellant’s attorney held appellant in contempt of court.

Based on the foregoing, we reverse and remand for an evidentiary hearing after all parties to the dissolution as well as appellant have been given notice and an opportunity to be heard.

REVERSED AND REMANDED.

GUNTHER and KLEIN, JJ, concur.


author: I,PER CURIAM. 11WEIMER, J.,

text:
    STATE of Louisiana v. Jessie HAYES.
    No. 2001-KK-3193.
    Supreme Court of Louisiana.
    Jan. 28, 2003.

      Richard P. Ieyoub, Attorney General, Robert R. Bryant, District Attorney, Frederick W. Frey, Lake Charles, Carla S. Sigler, Baton Rouge, Counsel for Applicant.
    Margaret S. Sollars, Thibodaux, Counsel for Respondent.
   I,PER CURIAM.

The decision of the Third Circuit, which reversed the trial court’s denial of defendant’s motion to quash the information based on improper venue, is vacated and this case is remanded to the district court for further proceedings. Venue in this prosecution for felony theft in violation of La.R.S. 14:67 is proper in Calcasieu Parish, although it is unclear at this pretrial stage of the proceedings where the alleged acts of conversion took place with the intent to deprive the victim permanently of its property, and money owed to it under a contract for services rendered in La-fourche Parish.

In August 2000, defendant was employed by Lake Charles Diesel, a company that sells and services diesel engines. The company is located in Calcasieu Parish. Outfitted with company equipment, tools, and uniforms, defendant was dispatched to repair a vessel engine in Lafourche Parish, pursuant to a contract entered via facsimile transmissions to and from Lafourche and Calcasieu Parishes. Under that contract, Lake Charles Diesel incurred substantial expenses in purchasing various parts for the repairs from several locations and shipping them Lto respondent via a branch store operated by Louisiana Machinery in Lafourche Parish. According to the testimony of Art Cooley, owner of Lake Charles Diesel, at the hearing on the motion to quash, defendant thereafter reported that he had received a cashier’s check from the owner of the vessel in the amount of $15,000, “[a]nd we told him to go ahead and bring it in.” On the following day, Cooley testified, defendant reported that the check had been stolen from his truck, and “that’s the last time we heard from him.” Defendant thus never returned to Lake Charles Diesel to give details surrounding the incident, or to return its equipment and uniforms. The state informed this Court during oral argument that, in fact, the cashier’s check never existed. Mlegedly at respondent’s insistence, the owner of the vessel obtained $15,000 in cash from a bank in Lafayette, Louisiana, and gave the currency to respondent in return for a receipt, although that amount fell far short of the negotiated contract price of $24,000.

The state initially charged respondent with theft of currency valued over $500, in violation of La. R.S. 14:67(A), on the basis of the missing $15,000 in cash. Defendant moved to quash the information based on improper venue, claiming that the alleged criminal activities could have occurred only in Lafourche Parish, not Calcasieu Parish. Thereafter, the state amended the bill of information to allege within a single count the theft of various items specified as assorted diesel parts and 11 sets of uniforms belonging to Lake Charles Diesel. During oral argument, the state at first maintained that with its amendment of the bill of information it had abandoned any claim with respect to the $15,000 in cash and focused its prosecution on the missing diesel parts and uniforms. However, the state retracted that statement later in argument and made clear to this Court that the allegations with respect to the missing $15,000 in cash still form part of its ^prosecution against respondent. According to the state’s theory of the case, the taking of diesel parts and uniforms formed elements of a larger design by respondent, conceived in Calcasieu Parish, which then culminated in his conversion of the $15,000 in cash tendered by the vessel owner in Lafourche Parish. At the close of the hearing on the motion to quash, the trial court ruled that venue for the case was proper in Calcasieu Parish.

Respondent sought review of that ruling, and the Third Circuit reversed and ordered that the motion to quash be granted. With respect to the allegations added in the amended bill of information, the court of appeal reasoned that “[although the defendant allegedly took tools and uniforms in Calcasieu Parish, the State failed to show the Defendant had formed the intent to permanently deprive his employer of the items at the time of the taking.” State v. Hayes, 01-01359 (La.App. 3rd Cir.10/19/01), — So.2d -. With respect to the missing cash, the court of appeal also reasoned that “the State did not prove the Defendant was in Calcasieu Parish when he formed the requisite intent to permanently deprive his employer of the $15,000.00 which he received as payment from a customer in LaFourche Parish.” Id.

The court of appeal erred in both respects. The locus delicti of a crime “must be determined from the nature of the crime alleged and the location of the act or acts constituting it.” United States v. Cabrales, 524 U.S. 1, 6-7, 118 S.Ct. 1772, 1776, 141 L.Ed.2d 1 (1998). In Louisiana, the crime of theft is broadly defined in La.R.S. 14:67(A) as “the misappropriation or taking of anything of value, which belong to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations.” An intent to deprive the victim permanently of “whatever may be Lthe subject of the misappropriation or taking is essential.” The statute combines the common law crime of larceny with the offense of embezzlement. See La.R.S. 14:67 Rptr.’s Cmt, (“One of the most important single changes made by the ‘theft’ section is the combination of what was ‘larceny’ and what was ‘embezzlement.’ This was accomplished by the elimination of the element of common law larceny known as ‘a trespass in the taking,’ or ‘taking out of the owner’s possession.’ ”). The crime of embezzlement “is a fraudulent and felonious appropriation of another’s property by the person to whom it' has been entrusted or into whose hands it has lawfully come. The gist of the offense is a breach of trust. The essence of the offense is the conversion of the property.” State v. Smith, 194 La. 1015, 195 So. 523, 525 (1940); see also Clark & Marshall, A Treatise on the Law of Crimes, § 12.19, p. 903 (7th ed. 1967) (“It is an essential element of embezzlement that the property charged to be embezzled was lawfully in the accused’s possession by fiduciary relation with the owner. Embezzlement differs from larceny in that the original taking is lawful. The gravamen of the offense is the subsequent felonious conversion of the property with the intent to convert it to the accused’s own use.” (internal quotation marks and citation omitted)).

In the present case, we agree with the court of appeal that at the hearing on the motion to quash the state did not offer any evidentiary basis for inferring that respondent formed his intent to deprive Lake Charles Diesel of its equipment, uniforms, and cash to be paid under the contract with the vessel owner in Lafourche Parish even before he left Calcasieu Parish on the job. However, the crime of theft charged against the defendant is in the nature of an embezzlement offense. The state alleges that by virtue of his employment relationship with Lake Charles Diesel, the defendant took possession of the company’s diesel parts and | ^uniforms, and of $15,000 in cash intended for the account of the company located in Calcasieu Parish under contract for the repair of a vessel in La-fourche Parish, and then feloniously converted those things of value to his own use with the intent to deprive Lake Charles Diesel of them permanently. The court of appeal therefore erred in finding that venue in Calcasieu Parish improper because the state could not prove at the hearing on the motion to quash that the taking and the felonious conversion coincided. In the offense of embezzlement, the felonious conversion or misappropriation takes place after the lawful receipt of the goods or property by the accused in the course of a fiduciary relationship with the victim that he then breaches in the act of conversion. The intent to deprive the owner of his property permanently therefore need not coincide with the actual taking.

With respect to the missing diesel parts and uniforms belonging to Lake Charles Diesel, La.C.Cr.P. art. 611 specifically provides that “[i]f acts constituting an offense ... occurred in more than one place ... the offense is deemed to have been committed in any parish in this state in which any such act or element occurred.” The state established at the hearing that the defendant took possession of the diesel parts and uniforms at Lake Charles Diesel in Calcasieu Parish, and, while he may have formed the intent to convert them to his own use subsequently in Lafourche Parish, venue in Calcasieu Parish is therefore proper. State v. Wells, 195 La. 758, 197 So. 420, 422 (1940) (“In a case of embezzlement of property received in trust in the parish in which it is to be returned, but disposed of in another parish, the venue is in the parish in which the property was to be returned.”) (citations omitted).

With respect to the missing cash, while the state did not prove at the hearing that the defendant converted the $15,000 to his own use in Calcasieu Parish, or | ^formed the intent to do so, it established that Lake Charles Diesel had imposed upon him specifically the duty to return to the company in Lake Charles Parish with the payment for the repairs to the vessel in Lafourche Parish, ostensibly with a cashier’s check in the amount of $15,000. In similar circumstances, some jurisdictions have adopted a specific statutory rule in cases of embezzlement providing for venue in the county or jurisdiction in which the defendant had the duty to deliver the property. See, e.g., People v. Mulder, 167 Mich.App. 141, 421 N.W.2d 605, 607 (1988)(“In all prosecutions for the crime of embezzlement said offense may be prosecuted either in the jurisdiction in which the property is received by the person charged or the jurisdiction in which it was the duty of such person to deliver, redeliver or return said property.”)(quoting Mich. Comp. Laws § 762.10 (1979); Mich. Stat. Ann. § 28.853 (1985)). Other jurisdictions follow this rule as a matter of jurisprudence. See, e.g., Cole v. State, 37 Ala.App. 232, 67 So.2d 64, 67 (1953)(Venue in embezzlement “was properly in the county where the accused was under obligation to account.”); State v. Knight, 616 S.W.2d 593, 595 (Tenn.1981)(“The conversion may just as reasonably be viewed as having occurred [in the county of prosecution], since appellant allegedly failed to account there for the funds which he had received [by virtue of his employment].”); see Herbert B. Chermside, Jr., Where is Embezzlement Committed for Purposes of Territorial Jurisdiction or Venue, 80 A.L.R.3rd 514. Louisiana is one such jurisdiction. See State v. Cason, 198 La. 828, 5 So.2d 121, 123 (1941)(in the absence of proof where the act of conversion occurred, “it will be presumed that the illegal conversion was accomplished in the jurisdiction of the court where the money was entrusted to the accused or at the place at which an accounting is to be made....”)

|7Moreover, even if the evidence at the hearing had established to a probability that the defendant converted the $15,000 in cash in Lafourche Parish, where he resides, we would still be inclined to find venue for the present prosecution in Calcasieu Parish. Although the “essence of the unlawful offense [of embezzlement] is a conversion of the entrusted property,” and ordinarily “the parish in which the conversion took place determines the court’s jurisdiction,” Cason, 5 So.2d at 123, the place where the effect of the criminal conduct occurs is an important consideration in determining whether the charged criminal acts have substantial contacts with the venue chosen for prosecution. See United States v. Saavedra, 223 F.3d 85, 93 (2nd Cir.2000); United States v. Muench, 153 F.3d 1298, 1304 (11th Cir.1998). In the present case, the force of the defendant’s alleged criminal acts is felt nowhere else than in Calcasieu Parish, where Lake Charles Diesel has lost not only its parts and uniforms, but also the steeply discounted payment made by the vessel owner in Lafourche Parish to respondent on the original contract. Calca-sieu Parish is therefore the appropriate venue for the state in which to prosecute this particular crime against the property interests of its citizens.

DECISION OF THE THIRD CIRCUIT REVERSED; RULING OF THE TRIAL COURT DENYING THE MOTION TO QUASH REINSTATED; CASE REMANDED TO THE TRIAL COURT FOR FURTHER PROCEEDINGS.

WEIMER, J., dissents and assigns reasons.

11WEIMER, J.,

dissenting.

I respectfully dissent from the majority opinion of this court. A review of the record in this matter discloses that there was no evidence offered to establish that any acts constituting the charged offense or any elements of the charged offense occurred in Calcasieu Parish so as to make venue of the prosecution proper under La.C.Cr.P. art. 611. In fact, the majority concedes that “the state did not offer any evidentiary basis for inferring that respondent formed his intent to deprive Lake Charles Diesel of its equipment, uniforms, and cash to be paid under the contract with the vessel owner ... before he left Calcasieu Parish on the job.” Nevertheless, the majority theorizes that the offense charged “is in the nature of an embezzlement” and that venue for this “embezzlement offense” is proper in Calcasieu Parish because that is where the diesel parts, the uniforms, and the $15,000 were presumably to be returned, citing State v. Cason, 198 La. 828, 5 So.2d 121 (1941).

Cason, supra, makes clear that “the essence of the unlawful offense [of embezzlement] is a conversion of the entrusted property” and that “[t]he venue of the crime of embezzlement is at the place where the money or property was converted to the defendant’s use.” Cason, 5 So.2d at 123. As the Cason court explains:

[I]n view of the difficulty of stating with exactness (in some cases) the place where the felonious conversion occurred, the courts have established certain legal presumptions which, if not rebutted by other | ^evidence, suffice to vest jurisdiction in a particular court. Thus, it will be presumed that the illegal conversion was accomplished in the jurisdiction of the court where the money was entrusted to the accused or at the place at which an accounting is to be made or at the site of the public office in cases involving public officers. But these presumptions can be indulged in only in the absence of proof showing that the conversions of the monies took place within another jurisdiction.

Cason, 5 So.2d at 123 (citations omitted).

In the instant case, the majority concludes that “it is unclear at this pretrial stage of the proceedings where the alleged acts of conversion took place with the intent to deprive the victim permanently of its property,” and therefore applies the jurisprudential presumption to find that venue is proper in Calcasieu Parish.

However, if the record in this matter is “unclear,” a proposition to which I do not necessarily ascribe, that lack of clarity is entirely attributable to the State, which persisted in changing its theory of the prosecution even through oral argument of this matter. In my view, the testimony adduced at the defendant’s motion to quash the information is not as “unclear” as the majority finds it. That testimony establishes that the diesel parts the defendant is accused of converting were delivered to the defendant in Lafourche Parish. The $15,000 was likewise entrusted to the defendant in Lafourche Parish. In fact, Barry Boshart, the employee who managed the job for Lake Charles Diesel, was unable to identify any property of Lake Charles Diesel with which defendant departed Calcasieu Parish for Lafourche Parish. Moreover, the ^testimony suggests that defendant was in Lafourche Parish the entire time the contract for the repair work was being negotiated, having been dispatched to that location to investigate the job and determine what would be required to complete the work. In short, and contrary to the majority’s conclusion, the evidence indicates that all of the alleged acts of conversion occurred in La-fourche Parish where the defendant was dispatched to evaluate and ultimately perform the repair work and from which location he never returned. The presumption invoked by the majority is simply not justified by the record below. Further, these “presumptions can be indulged only in the absence of proof showing the conversions of the monies took place within another jurisdiction.” Cason, supra. The record establishes all acts and elements of the offense occurred in Lafourche.

Moreover, the “embezzlement” theory of the offense adopted by the majority for the purpose of finding venue was not advanced by the State, which was content to argue that venue was proper in Calcasieu Parish because the defendant “concocted the scheme to permanently deprive Lake Charles Diesel of its property [there] whenever he was notified that he would receive the job [in Lafourche].” Of course, as the majority concedes, the State offered absolutely no evidence to establish this intent at the motion to quash hearing. Accordingly, in order to prevail below the defendant was only required to point out the lack of evidentiary basis for the State’s argument. The majority’s adoption of the “embezzlement” theory, without affording the defendant an opportunity to address this issue, which was not raised, briefed, or argued below, is unfair and unduly prejudicial. Neither the State, the trial court, the court of appeal, nor the defendant ever considered the embezzlement theory.

1 ¿Because the State failed in its burden of establishing that any acts constituting the charged offense or any elements of the charged offense occurred in Calcasieu Parish so as to make venue proper in that parish under La.C.Cr.P. art. 611, I respectfully dissent from the majority opinion in this case. Given the clear requirements of La.C.Cr.P. art. 611, by which requirements the court is constrained, the fact that the impact of the alleged theft will be felt in Calcasieu Parish is irrelevant to the present inquiry. Louisiana Code of Criminal Procedure article 611 has absolutely nothing within its language which speaks to a consideration of the impact of a crime.

At a minimum, fairness and justice demand that the defendant (who clearly was entitled to prevail at the court of appeal given the State’s then prevailing theory of venue) should have an opportunity to respond to this “embezzlement theory of venue” which was neither advanced nor considered below.

      . At the outset of oral argument, the State threw this case into complete confusion by announcing that it would not pursue the allegation of its original bill of information that the defendant had taken $15,000 from Lake Charles Diesel and would instead concentrate on the allegation in its amended bill of information charging theft of assorted diesel parts and tools and eleven sets of uniforms. Evidently pressured by persistent questioning of the justices about the change in the theory of the prosecution, the State then announced near the close of its argument that it would not abandon its claim that the defendant had stolen from Lake Charles Diesel the $15,000 paid for repairs by the owner of the vessel located in Lafourche Parish. Then, adding one more layer of confusion, the State suggested that the diesel parts mentioned in the amended single count of theft were not parts previously owned by Lake Charles Diesel and removed from the premises by defendant as he left Calcasieu Parish for Lafourche Parish, but were parts specifically ordered by Lake Charles Diesel for the job and thereafter shipped to defendant in Lafourche Parish.

      . The only property of Lake Charles Diesel that the evidence even remotely suggests may have been in the possession of defendant when he left Calcasieu Parish is the uniforms. However, when he left Calcasieu Parish with the uniforms, there was no evidence introduced to establish he did not have permission to possess the uniforms.