text:
    WARE ELSE, INC., and Ware Enterprises, Inc., Appellants, v. Susan OFSTEIN, Appellee.
    No. 5D02-3871.
    District Court of Appeal of Florida, Fifth District.
    Oct. 17, 2003.

      Douglas C. Spears of Stump, Storey & Callahan, P.A., Orlando, for Appellants.
    Michael J. Beaudine and Michael E. Milne of Gronek & Latham, LLP, Orlando, for Appellee.
   MONACO, J.

Ware Else, Inc. (“Ware Else”), and Ware Enterprises, Inc. (“Enterprises”) (collectively, “Appellants”), appeal the order of the trial court denying their motion to dismiss Count II of Susan Ofstein’s complaint for improper venue based on a forum selection clause contained in a non-compete agreement. Because we conclude that the forum selection clause is enforceable, and that the motion to dismiss should have been granted, we reverse.

The Appellants are Missouri corporations engaged in the business of supplying temporary and permanent personnel for the food service industry. Enterprises does business and maintains an office in Florida. Ware Else is the parent corporation and does not maintain an office in Florida.

Enterprises hired Ms. Ofstein as a management recruiter pursuant to a letter agreement, and subsequently requested that she sign a “Confidentiality/ Nondisclosure/Non-Compete Agreement” (the “Agreement”). The Agreement names both Ware Else and Enterprises as the Employer and contains the following forum and venue selection clause:

This agreement is accepted and entered into in Missouri and any question regarding its validity, construction, enforcement, or performance shall be governed by Missouri law. Any legal proceeding arising from or in any way regarding this Agreement shall have its venue located exclusively in the Circuit Court of St. Louis County, Missouri, and the parties hereby expressly consent and submit themselves to the personal jurisdiction and venue of the court.

Enterprises terminated Ms. Ofstein’s employment about 18 months after she was hired. Ms. Ofstein then filed a two-count complaint in the Circuit Court of Orange County, Florida. In Count I she sought compensation allegedly owed her pursuant to the terms of her employment under the letter agreement with Enterprises in accordance with section 448.08, Florida Statutes (2002). The letter agreement did not contain a forum or venue selection clause. In Count II (the subject of this appeal), Ms. Ofstein sought declaratory relief regarding the interpretation, validity and enforcement of the Agreement that did contain the forum and venue clause referenced above.

Appellants moved to dismiss Count II of Ms. Ofstein’s complaint for improper venue. Prior to the hearing on the motion, Ms. Ofstein served an affidavit in opposition in an attempt to show that there was unequal bargaining power between the parties. No live testimony was presented at the hearing. Ms. Ofstein related that shortly after being hired she was approached by a vice-president of Ware Else, and handed a pre-printed form entitled Confidentiality/N ondisclosure/N on-Compete Agreement. She further related in her affidavit that she was told that the form was part of the new employee paperwork required of all employees when they are hired. According to her affidavit, she was directed to sign the Agreement, although it was not negotiated or discussed prior to her execution of it. She concluded that, “It was essentially a ‘take-it-or-leave-it’ proposition.”

At the hearing on the Appellants’ motion to dismiss neither Ware Else, nor Enterprises refuted or challenged the facts contained in Ms. Ofstein’s affidavit. The trial court denied the Appellants’ motion to dismiss for improper venue, saying:

In considering the totality of the factors that we have to consider here, I am frankly persuaded to a lesser extent by the convenience issues, but to a greater extent by the splitting of the causes of action with the effect that it would cause people to be litigating in two states probably. So I’m going to deny your motion.

The Appellants filed their nonfinal appeal to this order. We have jurisdiction in accordance with Rule 9.130(a)(3)(A), Florida Rules of Appellate Procedure.

We must first focus on the standard of review to be applied in considering the trial court’s denial of the motion. The decision of the trial judge in rejecting the assertion that venue was improper in Orange County did not involve fact finding or the exercise of judicial discretion. Rather it concerned only an issue of law. The Appellants’ motion was founded solely on the forum selection clause of the Agreement. The courts of this state have frequently recognized that a decision interpreting a contract provision, including a provision for forum selection, presents an issue of law that is reviewable by the de novo standard of review. See, e.g., Bovis Homes, Inc. v. Chmielewski, 827 So.2d 1038 (Fla. 2d DCA 2002); Benefit Ass’n Intern., Inc. v. Mount Sinai Comprehensive, 816 So.2d 164 (Fla. 3d DCA 2002); Kerr Const. v. Peters Contracting, Inc., 767 So.2d 610 (Fla. 5th DCA 2000); Carr v. Stetson, 741 So.2d 567 (Fla. 4th DCA 1999). The reason for this conclusion was recently confirmed by this court:

Whether venue is proper in a particular forum, however, is not a matter of judicial discretion. If there is no legal basis to support the plaintiffs choice of venue, the trial court must dismiss the case or transfer it to a forum that is authorized under the applicable venue statute. This kind of venue motion usually presents an issue of law or a mixed issue of law and fact. The question is not whether the trial court should transfer venue, but whether it must.

Symbol Mattress of Florida, Inc. v. Royal Sleep Products, Inc., 832 So.2d 233, 235 (Fla. 5th DCA 2002), quoting Management Computer Controls, Inc. v. Charles Perry Const., 743 So.2d 627, 630 (Fla. 1st DCA 1999). Thus, we review this issue de novo.

Under Florida law the parties to a contract may as a general rule stipulate to the proper forum, venue and law that will govern the interpretation and enforcement of their mutual .contract. See Quinones v. Swiss Bank Corp., 509 So.2d 273 (Fla.1987). If the contract unambiguously requires litigation to be brought in a particular venue, it constitutes reversible error for the trial court to fail to honor that contractual obligation. See Greenstreet Mgmt., Inc. v. Barker, 833 So.2d 183 (Fla. 5th DCA 2002). See also Swarovski N. Am. Ltd. v. House of China, Crystal & Silver, Inc., 848 So.2d 452 (Fla. 4th DCA 2003). We conclude that the Agreement between the parties unambiguously requires Count II to be brought in Missouri, and we disagree that the contract under consideration is not enforceable either because it is considered to be a contract of adhesion, or is unreasonable or unjust.

The crux of Ms. Ofstein’s position is that the forum selection clause of the non-compete agreement fails the requirements set forth in Maritime Ltd. P’ship v. Green- man Advertising Assoc., Inc., 455 So.2d 1121, 1128 (Fla. 4th DCA 1984). The holding in Maritime was adopted by the Florida Supreme Court in Manrique v. Fabbri, 493 So.2d 437 (Fla.1986). Manrique and Maritime essentially hold that forum selection clauses should be enforced unless there is a showing that enforcement would be unjust or unreasonable. If a court determines that the forum selection clause is unreasonable or results from unequal bargaining power, however, it may decline to enforce it. Id. at 440.

More specifically, Manrique and Maritime held that a forum selection clause in a noncompete agreement is enforceable, provided that:

(1) The forum was not chosen because of overwhelming bargaining power on the part of one party which would constitute overreaching at the other’s expense.
(2) Enforcement would not contravene strong public policy enunciated by statute or judicial fiat, either in the forum where the suit would be brought, or the forum from which the suit has been excluded.
(3) The purpose was not to transfer an essentially local dispute to a remote and alien forum in order to seriously inconvenience one or both of the parties.

Maritime, 455 So.2d at 1123; see also, Manrique, 493 So.2d at 440.

Ms. Ofstein’s initial position is that the forum selection clause in the present contract was forced into the contract by the overwhelming bargaining power of the Appellants, and that it would, therefore, be in violation of the first Maritime/Man-rique test. This argument ignores the fundamental fact that the contract in question is an employment agreement between a Florida resident and an out of state national employer.

The affidavit of Ms. Ofstein filed in the trial court arrives at the conclusion that there was unequal bargaining power between her and the appellant, and that the employment offer was a “take-it-or-leave-it” proposition. In reality, however, the vast majority of employment agreements are “take-it-or-leave-it” propositions. The fact is, if Ms. Ofstein did not like the terms of the agreement, she could indeed have left it. This was not a situation where employment with this particular employer was forced on her. She was hired as a marketing recruiter for a national company that supplied temporary and permanent personnel for the food service industry. We see nothing wrong with the Appellants’ desire in this case to enhance its contractual and economic predictability by the inclusion and enforcement of a forum selection clause. See America Online, Inc. v. Booker, 781 So.2d 423 (Fla. 3d DCA 2001); see also, Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991).

In Bombardier Capital Inc. v. Progressive Mktg. Group, Inc., 801 So.2d 131, 135 (Fla. 4th DCA 2001), the Fourth District noted that the term “unequal bargaining power,” as used by the Manrique court was intended by the supreme court to be “subsumed within the court’s express holding, i.e., that forum selection clauses should be enforced in the absence of a showing that enforcement would be ‘unreasonable or unjust.’ ” No cases were found either by the Bombardier court or by this court that require the parties to be “equals” before enforcing a forum selection clause. We conclude, therefore, that it is not unreasonable, and does not constitute overreaching for a foreign corporate employer to require contract litigation in a forum where it is familiar with the law.

Ms. Ofstein also argues that the forum selection clause in the subject contract fails the third Maritime/Manrique test. She posits that the dispute is essentially a local dispute, that it is inconvenient to one or both parties, and that the Missouri courts might not be concerned with it. We find no basis for the assertion that a Missouri judge would not be concerned with the issues raised by this case. More importantly, that is not the point.

The key to the third test is whether the forum selection clause was inserted “to seriously inconvenience one or both of the parties.” In fact, the Manrique court said specifically that, “We emphasize that the test of unreasonableness is not mere inconvenience or additional expense.” Manrique, 493 So.2d at 440 n. 4; see also America Online. Here, there is nothing in the record that demonstrates that the forum selection clause was incorporated into the contract to seriously inconvenience Ms. Ofstein. Moreover, the only basis contained in Ms. Ofstein’s affidavit filed in the trial court to avoid the forum selection provision was the conclusory statement without amplification that litigating in the selected forum would be inconvenient and expensive for her. Neither the trial judge, nor we are convinced by this position. As her legal base is simply not sufficient, we conclude that the third test is not met.

The Manrique court, when discussing inconvenience, quoted a passage from the United States Supreme Court in M/S Bremen v. Zapata Off-Shore, Co., 407 U.S. 1, 18, 92 S.Ct. 1907, 82 L.Ed.2d 513 (1972), indicating that any party seeking to escape a forum selection agreement must show that a trial in the selected forum “will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court.” Absent that, according to Zapata, “there is no basis for concluding that it would be unfair, unjust, or unreasonable to hold that party to his bargain.” The fact that it will be inconvenient for Ms. Ofstein to litigate in Missouri is not legally significant.

Moreover, even conceiving the contract as a “contract of adhesion” is not decisive. Adhesion contracts are not necessarily void. Rather, any ambiguities in such a contract are construed against the drafter. See Pasteur Health Plan, Inc. v. Salazar, 658 So.2d 543, 544-45 (Fla. 3d DCA 1995), rev. denied, 666 So.2d 901 (Fla.1996). We have discovered no ambiguities in the forum selection clause here. See Bombardier, 801 So.2d at 135.

Finally, we note that in the present case the trial court reason for refusing to enforce the forum selection clause was only that splitting the causes of action would cause the parties to litigate in two different courts. That determination, however practical, is not a finding that meets any of the requirements of Manrique, Maritime, or Zapata.

REVERSED and REMANDED with instructions to grant the motion to dismiss.

PETERSON and ORFINGER, JJ„ concur.


source: Caselaw Access Project

author: PALMER, J.

license: Public Domain

text:
    Kay Ann KITCHEN, Appellant, v. EBONITE RECREATION CENTERS, INC., Appellee.
    No. 5D02-2840.
    District Court of Appeal of Florida, Fifth District.
    Oct. 17, 2003.

      C. Valentine Bates of Bates & Brown, P.A., Gainesville, for Appellant.
    Robert B. Buchanan and M. Suzanne Green of Siboni, Hamer & Buchanan, P.A., Ocala, for Appellee.
   PALMER, J.

Kay Ann Kitchen appeals the final order entered by the trial court granting Ebonite Recreation Centers’ motion for summary judgment and dismissing her personal injury lawsuit. Concluding that genuine issues of material facts are in dispute, we reverse.

Kitchen filed suit against Ebonite asserting a claim of premises liability and seeking damages for injuries which she sustained when she slipped and fell while at its bowling alley. The complaint alleged that Ebonite had negligently maintained the lanes on which Kitchen was bowling by allowing the floor behind the bowling line to be waxed causing Kitchen to slip and fall. Ebonite filed two motions for summary judgment which were denied by the trial court. However, the trial court granted Ebonite’s third motion for summary judgment which alleged that the area where Kitchen fell was free of any hazardous or dangerous conditions, that there was no record evidence demonstrating that Ebonite negligently maintained the bowling lanes, and that there was no record evidence that the negligent condition was well-known to Ebonite or that Ebonite should have known of it.

A trial court can grant a motion for summary judgment only “if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c); see Fisel v. Wynns, 667 So.2d 761, 764 (Fla.1996). A party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the non-moving party. See Bruckner v. City of Dania Beach, 823 So.2d 167, 170 (Fla. 4th DCA 2002). If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issue, it should be submitted to the jury as a question of fact to be determined by it. Id. When reviewing the entry of summary judgment, “an appellate court must examine the record and any supporting affidavits in the light most favorable to the non-moving party.” Turner v. PCR, Inc., 754 So.2d 683, 684 (Fla.2000).

In her deposition, Kitchen testified that on the day of the accident, after about 3CM5 minutes at the bowling alley, she attempted to help a student learn how to throw the ball correctly by showing her to take a few steps and then let the ball go, “and that’s when I slipped, and I was not across the line.” She stated that she had “never been on a bowling floor that was slick like that, greasy like.” Kitchen stated that there wasn’t any question that “there was something on the floor.” When asked if she saw any substance on the floor before she slipped, Kitchen stated: “It was real shiny, but I couldn’t — very shiny.... It looked like grease to me, and that’s all I can tell you. And it wasn’t just in my lane, it was in a lot of lanes.”

The instant summary judgment is reversed because Kitchen’s deposition testimony was sufficient to create a genuine issue of material fact as to Ebonite’s liability. See Troya v. Miami Beach Health Care Group, Inc., 780 So.2d 228 (Fla. 3d DCA 2001).

REVERSED and REMANDED.

SAWAYA, C.J., and TORPY, J., concur.


author: TORPY, J.

text:
    William Ronald JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3720.
    District Court of Appeal of Florida, Fifth District.
    Oct. 17, 2003.

      James B. Gibson, Public Defender, and A.S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   TORPY, J.

Appellant challenges the restitution order entered against him after he pled guilty to exploitation of an elderly person. After hearing, the trial court awarded restitution in the amount of $450,534.57. We reverse and remand for a new restitution hearing.

At the restitution proceeding, State presented testimony from the victim’s attorney, the victim’s daughter, and an affidavit from the victim’s accountant. We think this testimony was insufficient to support the restitution award because it was speculative and hearsay.

The victim’s attorney testified only to statements made to him by the victim. This could not form the basis of the restitution award. Miller v. State, 833 So.2d 318 (Fla. 2d DCA 2003).

The victim’s daughter testified that the victim had a net worth of between $750,000 and $2,000,000 before the victim met Appellant, but that her net worth had diminished to $100,000. Even if this testimony was properly admitted over Appellant’s foundation objection, it was far too speculative to support the restitution award. Henry v. State, 840 So.2d 1170 (Fla. 2d DCA 2003). The victim’s daughter also presented a compilation listing checks purportedly written on the victim’s accounts and payable to Appellant. No evidence was adduced identifying who had made the compilation, nor was any further predicate shown that would render it admissible as a summary pursuant to section 90.956, Florida Statutes (2001). Nevertheless, the trial court erroneously relied upon the document over a timely objection based upon hearsay. Herrington v. State, 823 So.2d 286 (Fla. 1st DCA 2002) (“Because the trial court erred in setting the amount of restitution based on hearsay evidence to which the defendant objected, we reverse the restitution order ... and remand for another restitution hearing.”) The remainder of the victim’s daughter’s testimony was either too vague or too speculative to properly form the basis of the restitution award. See Glaubius v. State, 688 So.2d 913 (Fla.1997) (evidence in support of restitution order must be competent).

Finally, as to the accountant’s affidavit, Appellant objected to its introduction on the basis that “there’s no way for me to cross examine the person who made the affidavit.” Although not textbook, we think this was sufficient to apprise the trial court of the nature of the legal objection. See Layman v. State, 728 So.2d 814 (Fla. 5th DCA 1999). Therefore, it was error to base an award of restitution on this document. Moore v. State, 694 So.2d 836 (Fla. 2d DCA 1997).

REVERSED and REMANDED.

SAWAYA, C.J., and PALMER, J., concur.


text:
    Rufino GUEBARA, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3425.
    District Court of Appeal of Florida, Fifth District.
    Oct. 17, 2003.
    W. Ford Duane of Hannah, Estes & Ingram, P.A., Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Rufino Guebara appeals his judgment and sentence which were imposed by the trial court after a jury found him guilty of committing manslaughter with a firearm. Concluding that the trial court applied the wrong standard when ruling on Guebara’s motion for a new trial, we remand this matter to the trial court to reconsider that motion.

Guebara was charged by information with one count of second degree murder with a firearm. After trial, the jury found Guebara guilty of committing the lesser included offense of manslaughter with a firearm.

Guebara filed a motion for a new trial claiming, among other things, that the jury’s verdict was contrary to the weight of the evidence. Guebara requested the trial court to re-weigh the evidence in ruling on his motion, an appropriate request pursuant to Florida Rule of Criminal Procedure 3.600(a)(2), which provides that a new trial shall be granted if the verdict is contrary to the law or to the weight of the evidence. However, instead of engaging in a review of the weight of the evidence, the trial court incorrectly used a sufficiency of the evidence standard to test Guebara’s motion.

In Tibbs v. State, 397 So.2d 1120 (Fla.1981), our Supreme Court explained the important distinction between the terms “weight of the evidence” and “sufficiency of the evidence”:

The weight and the sufficiency of evidence are, in theory, two distinct concepts most often relevant at the trial court level. Sufficiency is a test of adequacy. Sufficient evidence is “such evidence, in character, weight, or amount, as will legally justify the judicial or official action demanded.” Black’s Law Dictionary 1285 (5th ed.1979). In the criminal law, a finding that the evidence is legally insufficient means that the prosecution has failed to prove the defendant’s guilt beyond a reasonable doubt. Burks v. United States, 437 U.S. 1, 16 n. 10, 98 S.Ct. 2141, 2150 n. 10, 57 L.Ed.2d 1 (1978). Weight, at least in theory, is a somewhat more subjective concept. The “weight of the evidence” is the “balance or preponderance of evidence.” Black’s Law Dictionary 1429 (5th ed.1979). It is a determination of the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other. See In re Estate of Brackett, 109 So.2d 375 (Fla. 2d DCA 1959).

Id. at 1123 (footnote omitted). In footnote nine, the Tibbs court wrote that, in ruling on a weight of the evidence claim, the trial court essentially acts as a seventh juror in the case:

Rule 3.600(a)(2) thus enables the trial judge to weigh the evidence and determine the credibility of witnesses so as to act, in effect, as an additional juror. It follows that a finding by the trial judge that the verdict is against the weight of the evidence is not a finding that the evidence is legally insufficient. See Ricketts v. Williams, 242 Ga. 303, 248 S.E.2d 673 (1978), cert. denied, 439 U.S. 1135, 99 S.Ct. 1059, 59 L.Ed.2d 97 (1979).

Id. at 1123 n. 9.

We recently addressed this same issue in Moore v. State, 800 So.2d 747 (Fla. 5th DCA 2001). In Moore, the defendant appealed the trial court’s order denying his motion for a new trial which was filed after the jury found him guilty of committing a sexual battery on a physically helpless person. The defendant argued that the trial court applied an incorrect standard by which to test his new trial motion. Specifically, the defendant had requested the trial court “to re-weigh the evidence” in determining his motion but, instead of engaging in a review of the weight of the evidence, the trial court used a sufficiency of the evidence standard to test the motion. In reversing and remanding the case back to the trial court for reconsideration we agreed that the record clearly showed that the trial court applied the wrong standard.

Here, the trial court’s written order demonstrates that it applied the wrong standard in considering Guebara’s motion. The trial court’s order stated:

There is substantial competent, albeit circumstantial evidence to support the jury’s verdict in this case including un-rebutted testimony concerning the amount of force required to pull the trigger of the Glock pistol in question; the distance at which the pistol was fired; the angle of the shot; and the defendant’s actions following the shooting. Because this evidence is inconsistent with the defendant’s theory that the shooting was an accident and sufficient to support the jury’s verdict the defendant’s motion on this ground is denied.

The trial court cited to several cases in support of its decision to deny Guebara’s motion; however, in each of the cases cited the issue was whether or not the State had presented competent substantial evidence to support the verdict in a circumstantial evidence case — not whether the verdict was against the weight and credibility of the evidence.

Accordingly, we vacate Guebara’s judgment and sentence and remand this matter to the trial court to consider the weight of the evidence in ruling on Guebara’s motion for a new trial. If the court concludes that the jury’s verdict is against the manifest weight of the evidence presented, it must grant Guebara’s motion for new trial. If the court concludes that the verdict is not against the manifest weight of the evidence, it can again deny the motion and enter a new judgment and sentence.

We have considered the other issues raised by Guebara in this appeal and find no merit therein.

VACATED and REMANDED.

PETERSON and TORPY, JJ, concur.

      . See § 782.07(1), Fla. Stat. (2001).


author: PER CURIAM.

text:
    Mack ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1791.
    District Court of Appeal of Florida, First District.
    Oct. 17, 2003.
    Nancy A. Daniels, Public Defender; James C. Banks, Special Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Charleston v. State, 852 So.2d 348, 349 (Fla. 1st DCA 2003) (citing Gibson v. State, 721 So.2d 363 (Fla. 2d DCA 1998)).

WOLF, C.J., LEWIS and POLSTON, JJ., Concur.


author: VAN NORTWICK, J.

text:
    Robert BARNETT, and Diane Barnett, Robert Stover, and Pamela Stover, Joel Kurasch, and Virginia Kurasch, Jack and Diane Butz, Kumar Amaraneni, and Marcia Amaraneni, Appellants, v. DESTINY OWNERS ASSOCIATION, INC., Appellee.
    No. 1D02-3179.
    District Court of Appeal of Florida, First District.
    Oct. 17, 2003.

      Amy A. Perry and David B. Pleat of Pleat & Perry, P.A., Destín, for Appellants.
    Jean Frances Niven of Vernis & Bowling of Northwest Florida, P.A., Pensacola, for Appellee.
   VAN NORTWICK, J.

Appellants, homeowners in a planned unit development located in Destín, Florida, appeal a final declaratory judgment rendered in favor of appellee, Destiny Owners Association, Inc. (Association) in their action seeking to invalidate an amendment to the Association’s bylaws which prohibits Destiny homeowners from leasing their houses for a term less than six months. In upholding the amendment, the trial court determined that section 8.1(b) of the Association’s Declaration of Easements, Covenants and Restrictions unambiguously permitted the Association to amend the bylaws to restrict appellants from engaging in short-term rentals of their property. Among other things, appellants argue that the provision in section 8.1(b) relating to leasing was ambiguous and the trial court erred in ruling that the provision was unambiguous and in excluding parol evidence as to its meaning. We agree and reverse.

Article 8 of the Declaration, governing “Use of Property,” contains provisions both protecting and restricting the homeowner’s use of their property, including section 8.1(b), which provides that:

Residential Use: Each Parcel shall be used, improved and devoted exclusively to single family residential use, and for no commercial purpose. No time-share ownership of Parcels is permitted without Declarant’s approval. Nothing herein shall be deemed to prevent the Owner from leasing a House, subject to all of the provisions of the Declaration, Articles and Bylaws.

The Association argued below, and the trial court agreed, that the last clause in this provision “subject to all of the provisions of the Declaration, Articles and Bylaws” allows the Association to amend the bylaws restricting lease terms to a six-month minimum. By a vote of five to two, the Board of Directors of the Association amended the bylaws to provide:

Leasing of Property. The lease or rental of any dwelling or structure within the Property for a period of less than six (6) consecutive months is prohibited. All leases of dwellings or structures within the Property shall be in writing and a copy of such lease shall be provided to the Secretary of the Association or the managing agent of the Association.

However, section 10.10 of the Declaration sets forth the procedure for amending the provisions of the Declaration. Specifically, it provides, in pertinent part:

Section 10.10 Amendment. This Declaration may be amended at any time by an instrument signed by the President or Vice President and Secretary or Assistant Secretary of the [Association] certifying that such an amendment has been adopted by Owners holding seventy-five percent (75%) of the total voting power in the [Association] with respect to the Property, either in person or by proxy at a duly called meeting, or by written consent without meeting in a manner permitted by law ...

In construing section 8.1(b) we are required to look at the Declaration as a whole, and not interpret covenants in isolation. Robins v. Walter, 670 So.2d 971, 974 (Fla. 1st DCA 1995). Reading the last sentence of section 8.1(b), we agree with appellants that it does not unambiguously create a second method to amend the Declaration. As they argue, the last sentence of section 8.1(b) has at least two meanings. The phrase in question could mean that leasing of a house subjects leasor and leas-ee to all the provisions in the Declaration, Articles and Bylaws as is appellants’ contention, or it could mean that the right to lease a house is subject to restriction by the Declaration, Articles and Bylaws as is the Association’s contention.

Language in a document is ambiguous when it is uncertain in meaning and may be fairly understood in more ways than one and is susceptible of interpretation in opposite ways. Friedman v. Virginia Metal Products Corp., 56 So.2d 515, 517 (Fla.1952). If the contract is ambiguous, the trial court should construe the contract and consider parol evidence to determine the parties’ intent. Berry v. Teves, 752 So.2d 112 (Fla. 2d DCA 2000). As stated in Barrett v. Leiher, 355 So.2d 222, 225 (Fla. 2d DCA 1978):

Florida adheres to the general rule that a reasonable, unambiguous restriction will be enforced according to the intent of the parties as expressed by the clear and ordinary meaning of its terms. If it is necessary to construe a somewhat ambiguous term, then intent of the parties as to the evil sought to be avoided expressed by the covenants as a whole will be determinative.

It is the intent of the original parties which is controlling. Moore v. Stevens, 90 Fla. 879, 106 So. 901, 903-04 (Fla.1925). Because section 8.1(b) is ambiguous, parol evidence was material and the trial court erred in prohibiting appellants from introducing the testimony of Jay Odom, the developer of Destiny.

Accordingly, we REVERSE and REMAND for further proceedings consistent with this opinion. Because of our holding, we do not reach the other issues on appeal.

BARFIELD and BENTON, JJ., concur.


text:
    Douglas STEWART, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2380.
    District Court of Appeal of Florida, First District.
    Oct. 17, 2003.
    Nancy A. Daniels, Public Defender and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General and Barbara J. Yates, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Charleston v. State, 852 So.2d 348 (Fla. 1st DCA 2003); Gibson v. State, 721 So.2d 363 (Fla. 2d DCA 1998); Correia v. State, 695 So.2d 461, 463 (Fla. 4th DCA 1997); Robinson v. State, 575 So.2d 699, 703 (Fla. 1st DCA 1991).

BARFIELD, BENTON and VAN NORTWICK, JJ„ concur.


text:
    E.S., Natural Mother of D.H. and C.F., minor children, Appellant and Cross-Appellee, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee and Cross-Appellant.
    Nos. 1D03-0293, 1D03-1098.
    District Court of Appeal of Florida, First District.
    Oct. 17, 2003.
    Ann Marshall-Jones of Legal Services of North Florida, Inc., Tallahassee, for Appellant/Cross-Appellee.
    Acelo I. Pedroso, Department of Children and Families, Tallahassee, for Appel-lee/Cross-Appellant.
   PER CURIAM.

In these consolidated cases, E.S., the natural mother of D.H. and C.F., challenges orders (1) adjudicating D.H. and C.F. dependent and ratifying the finding of the general master that the mother engaged m egregious conduct, but rejecting the general master’s finding that termination of the mother’s parental rights is in the best interests of the children and instead finding that termination is not in the manifest interests of the children, and (2) approving the report of the general master on the disposition hearing and acceptance of a case plan. The Department of Children and Families (DCF) cross-appeals, arguing that the trial court erred in finding that the manifest interests of the children did not support termination. The orders on appeal were entered after DCF sought termination of the mother’s parental rights following a period of dependency. This dependency commenced when the children were placed in shelter care after one of the children, D.H., sustained extremely serious burns by being placed in a bathtub of scalding water by the mother’s boyfriend and, despite the seriousness of the injuries, the mother and her boyfriend delayed seeking medical treatment for the child. We affirm all issues raised on appeal and cross-appeal. Specifically, we affirm the trial court’s orders which adjudicated the children dependent and accepted the general master’s findings as to egregious conduct. We also affirm the trial court’s factual findings and legal conclusions as to the manifest best interests of the children, and therefore deny the relief requested in the cross-appeal.

We write to clarify that the mother, or another party to the proceeding, may petition for a return of the children, who have been placed in the long-term custody of relatives, to the mother’s custody. § 39.622(4), Fla. Stat. (2001). The re-establishment of any custodial privileges will require proof by the mother of a material change in circumstances, as well as proof that custody by the mother is in the children’s best interest. Id.; see also A.L. v. Department of Children and Family Services, 805 So.2d 1094 (Fla. 2d DCA 2002).

AFFIRMED.

BARFIELD, BENTON and VAN NORTWICK, JJ„ CONCUR.


text:
    CITY OF OAKLAND PARK FIRE DEPARTMENT and Florida League of Cities, Appellants, v. Leroy DYKES, Appellee.
    No. 1D02-3023.
    District Court of Appeal of Florida, First District.
    Oct. 17, 2003.
    William E. Platow, of Johnson, Anselmo, Murdoch, Burke & George, P.A., Fort Lauderdale, for Appellants.
    Lloyd M. Basso, of Basso, Gross & Fried, P.A., Fort Lauderdale, FL, for Ap-pellee.
   PER CURIAM.

The order is AFFIRMED. The case is REMANDED to the Judge of Compensation Claims for consideration of the claim for attorney fees and costs.

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


author: BENTON, J.

text:
    Wendy Rogers VAN DUYNE, Appellant, v. Peter VAN DUYNE, Appellee.
    No. 1D03-0274.
    District Court of Appeal of Florida, First District.
    Oct. 17, 2003.

      Mary Catherine Landt, Esquire, Ocala, for Appellant.
    S. Scott Walker, Esquire, Gainesville, for Appellee.
   BENTON, J.

In this appeal from a final judgment of dissolution, the mother of the two children born to the parties’ marriage argues that she should have been designated the primary residential parent and that the trial court’s findings do not support an unequal division of marital assets.

We find no fault with the trial court’s determination that rotating custody is in the best interests of the children. See, e.g., O’Brien v. Crumley, 695 So.2d 881 (Fla. 5th DCA 1997) (holding evidence supported determination that rotating custody was in child’s best interest where child had adjusted well to rotating custody schedule in effect prior to determination and the child had close ties and a loving relationship with both parents). See generally Charlee Perrow, Note, The Oñgin and Evolution of Florida’s Presumption Against Rotating Custody: A Guideline for Florida Judges, 30 Fla. St. U.L.Rev. 503, 507 (2003) (“Florida courts ... consider various factors when determining whether to order rotating custody instead of unquestionably applying the presumption.”).

We agree, however, that the trial court’s findings fail to support the distribution of marital assets that the judgment under review effects. “[T]he court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors” listed under section 61.075(1), Florida Statutes. § 61.075(1), Fla. Stat. (2001). In the present case, the trial court concluded that the down payment on the marital home (made less than two years into the nineteen-year marriage) was a gift that did not give rise to a special equity under section 61.075(5)(a), Florida Statutes. Gifts from one spouse to another are marital property, § 61.075(5)(a)(3), Fla. Stat. (2001), that must be distributed like other marital assets.

Insofar as it distributes the parties’ assets only, the judgment is vacated; and the case is remanded for findings in accordance with section 61.075(1), Florida Statutes, and distribution of marital assets in accordance with the statute. The judgment is otherwise affirmed.

BARFIELD and VAN NORTWICK, JJ., concur.


author: PLEUS, J.

text:
    Jerry WARREN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2818.
    District Court of Appeal of Florida, Fifth District.
    Oct. 17, 2003.

      Jerry Warren, Leesburg, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

After entering an open plea, Jerry Warren was convicted of felony DUI and felony driving with a suspended or revoked license as a habitual traffic offender. He now appeals the trial court’s order summarily denying his Rule 3.850 motion. We affirm in all respects, and write only to address Warren’s argument that he is entitled to relief under Huss v. State, 771 So.2d 591 (Fla. 1st DCA 2000) with regard to his conviction for felony driving with a suspended or revoked license.

Relying upon Huss, Warren argues that his trial counsel was ineffective for failure to object to the charge of driving with a suspended or revoked license being reclassified as a felony. We agree with the trial court that Huss is distinguishable under the circumstances.

In Huss, the charge of driving with a suspended or revoked license had been reclassified to the level of a third-degree felony because the defendant therein had previously been convicted of driving with a suspended or revoked license two or more times contrary to section 322.34, Florida Statutes. At the time defendant committed the offense at issue, section 322.34(2) required knowledge of the suspension or revocation of license. In contrast, at the time defendant committed the prior predicate offenses, the statute did not require such knowledge. As a result, Huss held that the prior convictions could not be used for enhancement under the current version of the statute.

However, unlike the situation in Huss, in the instant case Warren was charged with driving with a suspended or revoked license as a habitual traffic offender pursuant to section 322.34(5). Additionally, the attachments to the trial court’s order reflect that the Department of Highway Safety and Motor Vehicles had designated him as a habitual traffic offender back on April 19, 1989. Consequently, as the trial court observes in its order, it is the fact that the Department has designated Warren as a habitual traffic offender “based on his driving record, and has thereby revoked his license, and not the underlying traffic offenses themselves, which is the element of the offense.” In light of this circumstance, the state was only required to prove that Warren’s license was suspended or revoked as a habitual traffic offender and that he drove a vehicle upon the highways of the State of Florida. See Arthur v. State, 818 So.2d 589 (Fla. 5th DCA 2002) (en banc), review denied, 839 So.2d 697 (Fla.2003). As we explained in Bowen v. State, 833 So.2d 288, 289 (Fla. 5th DCA 2002), “Huss has no application to a prosecution under section 322.34(5) for driving while one’s license is suspended as a habitual offender.”

Warren’s remaining grounds are merit-less and do not warrant discussion.

AFFIRMED.

ORFINGER and MONACO, JJ., concur.


author: PER CURIAM SAWAYA, C.J.,

text:
    Felix SANTANA, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2616.
    District Court of Appeal of Florida, Fifth District.
    Oct. 17, 2003.
    Felix Santana, Century, Pro Se.
    No appearance for Appellee.
   PER CURIAM

We affirm the defendant’s sentence on the authority of Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002). Accord Green v. State, 832 So.2d 199 (Fla. 4th DCA 2002). We certify conflict with Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), review granted, Franklin v. State, Nos. SC03-413, SC03-532, 854 So.2d 659 (Fla. Sept. 19, 2003) (consolidating the appeals in Green and State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003), to review interdistrict conflict).

AFFIRMED; CONFLICT CERTIFIED.

THOMPSON and MONACO, JJ., concur.

SAWAYA, C.J., concurs and concurs specially, with opinion.

SAWAYA, C.J.,

concurring and concurring specially.

I have previously expressed the reasons why I believe Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002), and its progeny are wrongly decided and why I believe the decision in Green v. State, 839 So.2d 748 (Fla. 2d DCA), review granted, Franklin v. State, Nos. SC03-413, SC03-532, 854 So.2d 659 (Fla. Sept. 19, 2003) (consolidating the appeals in Green and State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003), to review interdistrict conflict), is the correct statement of the law. Pena v. State, 853 So.2d 1120 (Fla. 5th DCA 2003) (Sawaya, C.J., concurring and concurring specially); Fillyaw v. State, 853 So.2d 590 (Fla. 5th DCA 2003) (Sawaya, C.J., concurring specially). Because Hersey is binding precedent in this district, I must concur in the majority opinion, albeit very reluctantly.


author: PER CURIUM.

text:
    Ishmael ROLLE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2462.
    District Court of Appeal of Florida, Fifth District.
    Oct. 17, 2003.
    Ishmael Rolle, Panama City, pro se.
    No Appearance for Appellee.
   ON ORDER TO SHOW CAUSE

PER CURIUM.

Ishmael Rolle (defendant) appeals the summary denial of his rule 3.850 motion for postconviction relief. See Fla. R.Crim. P. 3.850.

The trial court’s denial order was rendered on April 15, 2003, and it advised the defendant that he had thirty days within which to file an appeal. The defendant’s notice of appeal was not filed until ninety-two days later. In response to this court’s order to show cause why the appeal should not be dismissed for lack of jurisdiction, the defendant filed a statement wherein he explained that after he filed his rule 3.850 motion with the trial court he was transferred to a different correctional institution and did not receive the trial court’s denial order until June 18, 2003. Defendant did not attach any documents to support his claim.

The instant notice of appeal was untimely filed and, accordingly, this appeal must be dismissed. However, the dismissal is without prejudice to the defendant to seek a belated appeal.

DISMISSED.

THOMPSON, PALMER and MONACO, JJ., concur.

      . See Fla. R.App. P. 9.141(c).


text:
    Carrie Elizabeth YOUNG, Appellant, v. Michael Troy LUTHER, Appellee.
    No. 1D03-0601.
    District Court of Appeal of Florida, First District.
    Oct. 17, 2003.

      Keith A. Mclver, Esquire of Chase, Quinnell, Mclver & Jackson, P.A., Pensacola, for Appellant.
    Lynne Oswald, Esquire, Milton, for Ap-pellee.
   PER CURIAM.

This is a timely appeal of the trial court’s order denying (pending final hearing) the mother’s request to relocate with the parties’ minor child, for whom she had been designated primary residential parent when the parties’ marriage was dissolved; and granting (pending final hearing) the father’s request to modify custody. We reverse the modification of custody, vacate denial of the relocation request, and remand for an immediate final hearing on the mother’s relocation request.

A parent requesting modification of primary residential custody of a child carries the burden to show “that the parties’ circumstances have changed substantially since the entry of the last order addressing custody and that a change in custody would be in the best interest of the child.” Young v. Young, 732 So.2d 1133, 1134 (Fla. 1st DCA 1999). See Kendall v. Kendall, 832 So.2d 878, 879-80 (Fla. 4th DCA 2002) (applying same standard to temporary custody modification request); Glover v. Glover, 820 So.2d 324, 324 (Fla. 5th DCA 2001) (same). Mr. Luther did not meet this burden. Accordingly, we reverse the trial court’s grant of his request to modify custody for failure to prove substantial change in circumstances. See, e.g., Kelly v. Kelly, 642 So.2d 800 (Fla. 2d DCA 1994) (holding evidence of changed circumstances insufficient, where mother had moved and changed jobs five times and had lived with boyfriend, where there was no evidence that mother was not meeting daughter’s needs, and where evidence showed that mother had begun more secure and permanent living arrangement); Kendall, 832 So.2d at 879 (reversing temporary custody modification because evidence that mother moved frequently was insufficient when no evidence was presented that the child had suffered any adverse consequences as a result).

Because the custody modification was in error and the denial of the mother’s relocation request appears to have been predicated on the custody determination, we vacate the portion of the order denying (pending final hearing) the mother’s relocation request. The trial court should promptly schedule a hearing on Mrs. Young’s request to relocate so that the question can finally be resolved. See Brown v. Brown, 790 So.2d 453, 454 (Fla. 1st DCA 2001) (holding relocation request may be granted upon a proper showing despite stipulation in dissolution judgment prohibiting wife from relocating while she was primary custodial parent). On remand, in deciding whether Mrs. Young may relocate with the parties child, the trial court should consider the relocation factors set forth in section 61.13(2)(d), Florida Statutes. See Wilson v. Wilson, 827 So.2d 401, 402 (Fla. 2d DCA 2002) (reversing for application of the correct standard for relocation under section 61.13(2)(d), where it was not clear whether the statute had been applied); Garone v. Parks, 668 So.2d 307, 308 (Fla. 4th DCA 1996) (holding same standard should be used for deciding temporary and permanent relocation requests).

REVERSED in part, VACATED in part, and REMANDED for final decision of Mrs. Young’s relocation request.

BARFIELD, BENTON, and VAN NORTWICK, JJ., CONCUR.


author: WEBSTER, J.

text:
    Derek Desmond QUALLO, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-4133.
    District Court of Appeal of Florida, First District.
    Oct. 20, 2003.
    An Emergency Petition for Writ of Prohibition. Original Jurisdiction.
    Russell J. Williams, Fort Lauderdale, for Petitioner.
    Charlie Crist, Attorney General; Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Respondent.
   WEBSTER, J.

Petitioner seeks a writ of prohibition to prevent the trial court from proceeding further with his pending criminal case. He claims that the state did not file formal charges against him until 14 months after his arrest; that he filed a motion for discharge asserting he had not been tried within the period specified by Florida Rule of Criminal Procedure 3.191(a); and that the trial court denied the motion without a hearing by an order holding that the motion for discharge was premature because petitioner had not filed a notice of expiration of speedy trial as required by rule 3.191(p)(2). Petitioner asserts that he was entitled to immediate discharge on motion, and that no notice of expiration of speedy trial was necessary because, given the facts, the state is not entitled to the recapture period afforded by rule 3.191(p)(3). He relies on State v. Williams, 791 So.2d 1088 (Fla.2001), Genden v. Fuller, 648 So.2d 1183 (Fla.1994), and State v. Agee, 622 So.2d 473 (Fla.1993).

In response to an order to show cause, the state concedes that, assuming petitioner’s recitation of the facts is correct, the trial court’s order would be in error and, based on Williams, Genden and Agee, petitioner would be entitled to the relief he seeks. We agree. The facts alleged by petitioner are indistinguishable from those in Williams, in which the court, relying on Genden and Agee, held that the state was not entitled to the benefit of the rule 3.191 recapture period and the trial court should have granted the motion for discharge. Accordingly, if the facts are as alleged by petitioner, he is entitled to discharge. But cf. State v. Demars, 848 So.2d 436 (Fla. 4th DCA 2003) (en banc) (where, in a case apparently factually indistinguishable from Genden, the court held that a notice of expiration of speedy trial was necessary, implying that the state is entitled to the benefit of the rule 3.191(p) recapture period, •without citing or discussing either Williams or Genden).

Although the state concedes that the trial court misapplied rule 3.191, it argues that we must, nevertheless, deny the petition because a factual dispute exists regarding when petitioner was “taken into custody,” as that term is used in rule 3.191. See Fla. R.Crim. P. 3.191(d) (defining when “a person is taken into custody”). Again, we agree. It is not clear from the petition when petitioner was “taken into custody” for purposes of rule 3.191 because it is not clear that he was “arrested” as he claims, and prohibition is not an appropriate proceeding in which to resolve disputed issues of fact. McKinney v. Yawn, 625 So.2d 885, 886 (Fla. 1st DCA 1993). Accordingly, we are constrained to deny the petition for a writ of prohibition. However, in its response the state requests that we also direct the trial court to conduct an evidentiary hearing on the motion for discharge, and to grant the motion if it determines that petitioner was “taken into custody” for purposes of rule 3.191 more than 175 days before the information was filed. We grant this request, and direct the trial court to conduct such a hearing.

PETITION FOR WRIT OF PROHIBITION DENIED.

KAHN and POLSTON, JJ„ concur.


text:
    Joseph GOODE, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1542.
    District Court of Appeal of Florida, First District.
    Oct. 22, 2003.

      Nancy A. Daniels, Public Defender; Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Joseph Goode, appeals his judgment and sentence for aggravated battery, contending that the trial court erred in denying his request for a jury instruction on the defense of others. Concluding that the trial court erred in failing to give the requested instruction, we reverse and remand for a new trial.

The State charged appellant with attempted second-degree murder based upon appellant’s involvement in a physical altercation in the apartment of Deidra Banks, the sister of Ernest Banks, a close friend of appellant’s. Mark Williams, the victim, had kept Deidra Banks’s car for two days without her permission, and on the night of the incident, Ernest Banks and appellant had planned to help Deidra Banks recover possession of her car. Upon arriving at Deidra Banks’s apartment, Ernest Banks and appellant encountered Williams, and a fight ensued. The parties gave conflicting testimony as to who instigated the fight but, by all accounts, the fight began almost immediately upon the men’s entry into the apartment. The struggle lasted only a few minutes, at which time appellant and Ernest Banks left the apartment, leaving Williams with approximately seventeen stab wounds.

During appellant’s trial, the primary evidence in the ease establishing that appellant had knowledge of the victim’s violent propensities and that appellant was acting in defense of those around him came in the form of appellant’s written statement given to Robert Nelson, a homicide detective who interviewed appellant after his arrest. Nelson read appellant’s written statement into evidence, stating as follows:

The night in question, I was called by Ernest Banks to drive his sister’s car to his sister’s place. Before arriving his sister called him several times sounding frantic saying that Mark [Williams, the victim] says he is on his way back to her place and he will be there in thirty minutes.
Recently learning that he has pulled a gun on her before I felt it might be trouble so I had a knife for protection. I didn’t know if he would pull a gun on me for trying to retrieve the car.
On arrival to Ernest sister’s place we see Mark rush up to the apartment looking irate. We follow [sic] behind to make sure nothing happened to his sister. The apartment door was half way open before we enter [sic]. We could see Mark yelling at Ernest [sic] sister, his back toward us.
Right at entering the threshold of the door Mark turned, rushed toward us. At that moment I felt my life was in danger. I then got my knife and stabbed in defense of my life. We all was [sic] in a scuffle together and we all fell on a glass table. The guy was bigger than me and he looked like he was on some sort of drugs because he was still punching me and Ernest and grabbing us.
I didn’t know how many times he was stabbed but I honestly was defending my life. After exhaustion of the scuffle me and Ernest left....

Additional testimony elicited from Ernest Banks on cross-examination, and from Dei-dra Banks on direct examination, conflicted with Williams’ testimony as to the series of events culminating in the parties’ altercation. Ernest Banks testified that Williams stood up and lunged at them when they entered the apartment, and Deidra Banks testified that when Williams entered her apartment, he began pacing across the floor, saying, “Let me explain.” Williams’ own testimony was that he entered the apartment and sat quietly on the couch, as Deidra Banks had instructed him, until she opened her front door and two men entered and began to charge him. Deidra Banks also testified that, after Williams arrived, she requested that the police be called because she was afraid that he was going to go into an “outrage,” as he was apparently prone to do. At the close of all the evidence, appellant renewed his earlier motion for judgment of acquittal and requested a jury instruction on defense of others. The trial court denied both the motion and the request. The trial court stated that it would have granted a request for an instruction on defense of others but for appellant’s decision to defend upon the grounds that the State had not met its burden of proof. After the trial court instructed the jury as to justifiable attempted homicide, excusable attempted homicide, attempted second-degree murder, and the lesser included crimes of aggravated battery and battery, the jury returned a verdict of guilty on the lesser included offense of aggravated battery. Appellant was subsequently sentenced to five years’ imprisonment. This appeal followed.

Although we review the trial court’s ruling on whether to admit or exclude a jury instruction only for an abuse of discretion, that discretion is fairly narrow because appellant is entitled, upon request and by law, to have the jury instructed on his theory of defense if any evidence supports that theory, so long as the theory is valid under Florida law. See Palmore v. State, 838 So.2d 1222, 1223 (Fla. 1st DCA 2003) (emphasis in original) (citing Mora v. State, 814 So.2d 322 (Fla.2002); Bozeman v. State, 714 So.2d 570, 572 (Fla. 1st DCA 1998)); Langston v. State, 789 So.2d 1024, 1026 (Fla. 1st DCA 2001) (citing Gardner v. State, 480 So.2d 91 (Fla.1985); Rockerman v. State, 773 So.2d 602, 603 (Fla. 1st DCA 2000)). In determining whether to give a requested instruction, the trial court should consider the evidence presented without weighing the evidence, as the latter is a task for the jury. Rockerman, 773 So.2d at 603; see also Wright v. State, 705 So.2d 102, 105 (Fla. 4th DCA 1998) (holding that “a defendant is ‘entitled to a jury instruction on his theory of the case if there is any evidence to support it,’ no matter how flimsy that evidence might be.”) (citations omitted; emphasis in original); Taylor v. State, 410 So.2d 1358, 1359 (Fla. 1st DCA 1982) (holding that a defendant is entitled to his requested instruction no matter “how weak or improbable his testimony may have been with respect to the circumstances” leading to the commission of the offense). The evidence supporting appellant’s theory may be adduced from cross-examination of State witnesses or direct examination of the defense witnesses. See Wright, 705 So.2d at 104 (citing Kilgore v. State, 271 So.2d 148, 152 (Fla. 2d DCA 1972)).

A person is justified in the use of deadly force only if he or she reasonably believes such force is necessary to prevent the imminent commission of a forcible felony against a person who is a member of his or her immediate family or household or to protect himself, herself, or another from imminent death or great bodily harm. §§ 776.012, .031, Fla. Stat. (2000). Thus, an instruction on defense of others is cognizable under Florida law. See Palmore, 838 So.2d at 1223; see also Hancock v. State, 276 So.2d 223, 225 (Fla. 1st DCA 1973) (noting that the appellant would be entitled to an instruction on the defense of others where there was conflicting evidence as to whether the appellant shot the victim in defense of his nephew or whether the appellant was engaged in the fight against the victim along with his nephew). In addition, inconsistencies in criminal defense theories are permissible unless the proof of one theory necessarily disproves the other. Kiernan v. State, 613 So.2d 1362, 1364 (Fla. 4th DCA 1993) (citations omitted).

In the instant case, the trial court denied appellant’s requested instruction, reasoning that appellant’s defense that the State had not met its burden of proof and his claim of defense of others were mutually exclusive. However, the defense that the State had not met its burden of proof did not exclude appellant’s claim that he acted in the defense of others. See id. Furthermore, based upon appellant’s statements, the conflicting testimony of Ernest Banks and Williams as to who began the altercation, and Deidra Banks’s testimony regarding her concern that Williams might become angry or violent, appellant presented, at the least, some evidence supporting his theory that he acted in the defense of others. Thus, we agree with appellant that the denial of his requested instruction prevented him from presenting a valid defense. The trial court should have given the jury the opportunity to weigh this evidence, regardless of the court’s own view of such evidence, in light of the applicable law on defense of others. Accordingly, because the trial court erred in failing to give appellant’s requested jury instruction on the defense of others, we are constrained to reverse appellant’s judgment and sentence and remand for a new trial. See Palmore, 838 So.2d at 1224-25; see Wright, 705 So.2d at 105 (reversing and remanding for a new trial because the trial court erred in denying the appellant’s requested self-defense instruction when the jury, if it had believed the appellant’s version of the facts and had been properly instructed, could have concluded that the appellant’s actions were defensive and reasonable, even when the appellant testified that she did not remember important facts central to the charges against her); Johnson v. State, 634 So.2d 1144, 1145 (Fla. 4th DCA 1994) (reversing and remanding for a new trial because the trial court failed to give the requested instruction of self-defense, when the appellant provided circumstantial evidence from which a jury could infer that the appellant believed his conduct was reasonably necessary for his own defense).

REVERSED and REMANDED for a new trial.

WOLF, C.J., LEWIS and POLSTON, JJ„ CONCUR.

      . Although not raised as a separate issue on appeal, within his argument that the trial court erred in failing to give the defense of others instruction, appellant also argues that it was fundamental error for the trial court to fail to instruct the jury on self-defense. However, he concedes that this issue was not raised at trial. Because this issue was not raised below, it is deemed waived. See Wuornos v. State, 644 So.2d 1012, 1020 (Fla.1994). The trial court’s failure to give an instruction unnecessary to prove an element of the crime, such as the affirmative defense of self-defense, is not fundamental error. See Holiday v. State, 753 So.2d 1264, 1268 (Fla.2000); cf. Shells v. State, 642 So.2d 1140, 1141 (Fla. 4th DCA 1994) (holding that to label the trial court's failure to give a jury instruction on self-defense as fundamental error, when the defense did not request such an instruction, "would place an unrealistic burden on the trial judge.")


text:
    Edward LANG, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1908.
    District Court of Appeal of Florida, First District.
    Oct. 22, 2003.

      Nancy A. Daniels, Public Defender; Fred Parker Bingham, II, Assistant Public Defender, Tallahassee, for Appellant and Appellant pro se.
    Charlie Crist, Attorney General; Karen M. Holland, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

In accordance with In re Anders Briefs, 581 So.2d 149 (Fla.1991) (contemplating use of “the Anders procedure ... even when costs or other minor sentencing errors are raised in ‘no merit’ briefs”), we affirm appellant’s conviction and sentence. We also affirm all costs imposed, except the $20.00 assessed pursuant to section 938.06, Florida Statutes (2001), for the Crime Stoppers Trust Fund.

We reverse imposition of a public defender’s fee, and the lien securing its payment, because the trial court failed to advise appellant of his right to a hearing to contest the amount, as required by section 938.29(6), Florida Statutes (2001), and Florida Rule of Criminal Procedure 3.720(d)(1) (2002). See Carter v. State, 791 So.2d 525, 526 (Fla. 1st DCA 2001) (“[T]he public defender lien must be reversed because the trial court failed to advise the defendant of his right to contest the amount.”); Campbell v. State, 745 So.2d 500, 500 (Fla. 1st DCA 1999) (“When a public defender lien is imposed, the trial court must give the defendant notice of the right to contest the amount of the lien.... Because these procedures were not followed here, we reverse and remand with instructions to afford the defendant a hearing on the amount of the lien.”); Kirby v. State, 658 So.2d 1232, 1232 (Fla. 1st DCA 1995) (“The trial court erred in imposing public defender fees without giving ... notice of the right to a hearing to contest that amount.... Accordingly, we REVERSE the imposition of the fees and remand to allow Kirby ... opportunity to be heard on the amount of the fee.”). We remand to allow appellant an opportunity to be heard on the amount of the fee.

We strike the $20.00 surcharge imposed pursuant to section 938.06 for the Crime Stoppers Trust Fund because the statute authorizes imposition of the surcharge only when a sentencing court has levied a “fine prescribed by law for any criminal offense.” § 938.06(1), Fla. Stat. (2001) (“In addition to any fine prescribed by law for any criminal offense, there is hereby assessed as a court cost an additional surcharge of $20 on such fine_”). Here the trial court erred in assessing “an additional surcharge of $20” because no fine was imposed.

In his motion under Rule 3.800(b), Florida Rules of Criminal Procedure, appellant challenged not only the public defender’s fee and the cost assessed for the Crime Stoppers Trust Fund, but also the $3.00 cost assessed for the Duval County Teen Court Trust Fund. The Duval County Teen Court Trust Fund cost is mandatory, however, so that the trial court’s failure individually to announce it at the sentencing hearing does not entitle appellant to relief. See Reyes v. State, 655 So.2d 111, 116 (Fla. 2d DCA 1995) (“The trial court is not obligated to announce orally the dollar amount of [mandatory] costs or to separately identify the legal basis for these costs at the sentencing hearing.”). Cf. Pierce v. State, 779 So.2d 286, 286 (Fla. 2d DCA 1998) (“Pierce challenges the imposition of ... $3 for the Teen Court Program[] without oral pronouncement or statutory designation. The State concedes that the statutes and ordinance authorizing th[is] ... mandatory eost[ ] did not become effective until ... after the date of Pierce’s offense. Therefore, we strike the[] cost[].”). A trial court sitting in a county that has enacted a county ordinance referencing section 938.19, Florida Statutes (2001), and “adopting] a mandatory [teen court] cost ... shall ... assess[ ] [$3.00] ... as a court cost ... against every person who ... is convicted of ... a violation of a state criminal statute.” Duval County, where the trial court in the present case sits, has adopted such an ordinance.

Accordingly, the conviction and sentence are affirmed. Imposition of the public defender’s fee and lien is reversed, with directions that appellant be given an opportunity to be heard as to the amount of any fee before imposition on remand. Imposition of the $20.00 cost, pursuant to section 938.06, is reversed. Imposition of all other costs is affirmed.

BARFIELD and VAN NORTWICK, JJ., concur.

      . See Maddox v. State, 760 So.2d 89, 109 (Fla.2000) ("Presently, rule 3.800(b) provides defendants with an opportunity to contest the erroneous imposition of costs.... ”); Carter v. State, 787 So.2d 193, 193 (Fla. 1st DCA 2001) (reversing and remanding "to allow appellant an opportunity to contest the imposition of the public defender lien,” where lack of hearing at sentencing as to amount had been argued on motion under Rule 3.800(b)); see generally Nicholson v. State, 846 So.2d 1217, 1219 (Fla. 5th DCA 2003) ("Rule 3.800 expressly applies to any 'sentencing error.’ We think a sentencing error is not only an error in a 'sentence’ but also any error that occurs as part of the sentencing process.”).

      . Section 938.19 provides:
      [I]n each county in which a teen court has been created, a county may adopt a mandatory cost to be assessed in specific cases as provided for in subsection (1) by incorporating by reference the provisions of this section in a county ordinance....
      (1) A sum of $3, which shall be assessed as a court cost by both the circuit court and the county court in the county against every person who ... is convicted of ... a violation of a state criminal statute.... The $3 assessment for court costs shall be assessed in addition to any fine ... or other court cost....

      . Chapter 634, Ordinance Code (Fines and Costs), section 634.106 (2001), entitled "Teen court programs,” provides:
      Pursuant to the authority granted in section 938.19, Florida Statutes:
      (a) A sum of three dollars shall be assessed as a cost by both the circuit and the county court in the county against every person ... convicted of ... a violation of a state criminal statute....

      (c) The three dollar assessment for court costs shall be assessed in addition to any ... court cost....


text:
    Joshua L. BALDWIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-2708.
    District Court of Appeal of Florida, First District.
    Oct. 22, 2003.
    Robert Augustus Harper and Michael Robert Ufferman of Robert Augustus Harper Law Firm, P.A., Tallahassee, for Appellant.
    Charlie Crist, Attorney General and Felicia A. Wilcox, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Joshua L. Baldwin appeals the sentences imposed following his plea of no contest to two counts of lewd and lascivious molestation. The appellant correctly contends that his concurrent sentences of 12 years’ state prison, followed by 10 years sex offender probation, for each count, are in excess of the 15-year statutory maximum. In accordance with the state’s concession of error, we reverse the appellant’s sentences and remand for resentencing within the permissible range under the Criminal Punishment Code.

On remand, the trial court may consider any appropriate argument, including the appellant’s argument that victim injury points should not be scored for penetration.

Reversed and Remanded.

BENTON, PADOVANO and BROWNING, JJ„ concur.


text:
    Steven Earl HUTCHINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-896.
    District Court of Appeal of Florida, First District.
    Oct. 22, 2003.
    Nancy A. Daniels, Public Defender, and Nancy L. Showalter, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the revocation of his probation, where the court did not indicate which particular conditions were violated. Because this is required under cases such as Rogers v. State, 635 So.2d 1026 (Fla. 1st DCA 1994), the appealed orders are reversed and the case is remanded for entry of a written order specifying the conditions which the court found to have been violated. See also, e.g., Jones v. State, 638 So.2d 126 (Fla. 1st DCA 1994); Brundage v. State, 598 So.2d 1227 (Fla. 1st DCA 1992).

ERVIN, ALLEN and LEWIS, JJ., concur.


text:
    Michael STONE, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3511.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2003.

      Carey Haughwout, Public Defender, and Michael Antinori, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Michael Stone pled not guilty to DUI and was sentenced to thirty days in the Broward County Jail and two years of probation. When entering this plea, Stone properly reserved the right to appeal the trial court’s denial of his motion to suppress sobriety test results. We consider this issue on appeal and affirm.

Early on the morning of August 20, 2001, Broward County Sheriffs Deputy Jeffrey Bell was on road patrol. At the time of the incident giving rise to this case, Bell’s patrol car was parked in the lot of a Mobil station in unincorporated Pompano Beach and he had three prisoners from an unrelated incident in his backseat. Bell observed Stone drive his 49cc Yamaha scooter into the adjacent 7-Eleven parking lot. Bell knew Stone from prior encounters regarding the scooter, and knew that Stone’s driver’s license had been suspended as recently as July 2001. Stone was not wearing a helmet or eye protection, nor did Bell know whether Stone was insured.

As a result of these observations, Bell called to Stone by name over the microphone in his patrol car after Stone exited the 7-Eleven and mounted his scooter. Bell called to Stone a second time before Stone walked in Bell’s direction to speak to him outside the patrol car. Bell asked Stone for his driver’s license, which Stone showed him as it had been reinstated the previous day. However, during this process, Bell detected the odor of alcohol on Stone’s breath and administered the requisite field sobriety tests, which Stone failed. Bell arrested Stone for DUI, and took him to the station for further sobriety testing. Stone moved to suppress the results of these tests on the ground that Bell did not have probable cause to stop Stone. The motion was denied following an evidentiary hearing.

A trial court’s ruling on a motion to suppress comes to this Court clothed with a presumption of correctness, so that trial court resolution of factual and evidentiary conflicts should not be disturbed on appeal. Glover v. State, 677 So.2d 374, 376 (Fla. 4th DCA 1996) (citing McNamara v. State, 357 So.2d 410 (Fla.1978)). However, this Court reviews de novo the application of the law to such facts to determine the existence of the probable cause necessary to satisfy a Fourth Amendment inquiry. Porter v. State, 765 So.2d 76, 77 (Fla. 4th DCA 2000) (en banc) (citing Ornelas v. United States, 517 U.S. 690, 691, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)).

When a law enforcement officer stops a motor vehicle, the action amounts to a detention of the driver implicating the Fourth Amendment restriction against unreasonable searches and seizures. See Whren v. United States, 517 U.S. 806, 809-810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (citations omitted). As a result, the officer must have probable cause to believe that a traffic violation has been committed. Id. at 810 (citations omitted). Probable cause has been defined as “where the facts and circumstances within an officer’s knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been committed.” State v. Byham, 394 So.2d 1142, 1143 (Fla. 4th DCA 1981) (citing Benefield v. State, 160 So.2d 706, 708 (Fla.1964)). Therefore, the issue on appeal requires a two-pronged analysis under Whren: (1) whether Bell’s calling to Stone was a traffic stop and (2) whether Bell had probable cause to effect such a traffic stop.

The first prong of this analysis raises the question of whether Bell’s calling to Stone was something less than a traffic stop, specifically a consensual encounter, as asserted by the State below and on appeal. A consensual encounter exists where an individual may choose to comply with or disregard a law enforcement officer’s requests, and is free to leave the situation without repercussion. See O.A. v. State, 754 So.2d 717, 720 (Fla. 4th DCA 1998) (quoting Popple v. State, 626 So.2d 185, 186 (Fla.1993)). Reasonable suspicion or probable cause is not required for such an encounter, and Fourth Amendment protections are not invoked. Id.

In the case at bar, the trial court’s oral finding that Bell acted in good faith indicates the trial court engaged in a probable cause analysis thereby implicitly rejecting the State’s contention that a consensual encounter rather than a stop occurred. If this were not the case, the trial court would have denied the motion to suppress on the consensual encounter ground rather than analyzing whether Bell had probable cause for the stop and if not, whether the good faith exception would support the denial of the motion to suppress.

Considering the second prong, we conclude that Bell had probable cause to stop Stone for driving with a suspended license but did not have probable cause to stop him for safety violations. Even though the trial court focused on the safety violation basis for probable cause (discussed below), where the trial court determines that a stop does not offend the Fourth Amendment for incorrect reasons, that finding should be upheld where it is supported by an alternative, even if unar-ticulated, theory. Covington v. State, 728 So.2d 1195, 1196 (Fla. 4th DCA 1999) (citing Caso v. State, 524 So.2d 422, 424 (Fla.1988)).

To support its argument that Bell had probable cause to stop Stone for a license violation, the state justifiably focuses on the fact that Bell was aware that as recently as July 2001, Stone was driving his scooter with a suspended license. A law enforcement officer’s knowledge that an individual’s driver’s license was suspended as recently as four or five weeks prior to a traffic stop is sufficient for the officer to form “a reasonable suspicion, if not probable cause, to believe that [the] defendant’s license was still suspended.” State v. Leyva, 599 So.2d 691, 693 (Fla. 3d DCA 1992) (citations omitted).

Under the facts of the case at bar, Bell had similarly fresh knowledge of Stone’s driver’s license suspension, and therefore, had probable cause to reasonably believe that Stone was committing a traffic violation, the misdemeanor of driving with a suspended license. See State v. Pugh, 635 So.2d 999, 1000 (Fla. 2d DCA 1994) (citations omitted). Thus, the checks against unreasonable government seizure prescribed in Whren are satisfied, and Bell’s calling Stone did not offend the Fourth Amendment, despite the fact Stone carried a valid driver’s license at the time of the stop.

However, the State’s argument that the trial court did not err in denying Stone’s motion to suppress because Bell had probable cause to stop Stone for safety violations is without merit. Bell articulated that he stopped Stone because he believed Stone to be violating Florida traffic law by not wearing a helmet or eye protection or carrying the required insurance while riding his scooter. Florida Statutes section 316.211 does provide that an individual may not ride a motorcycle without an approved helmet and eye protection, but also provides an exception to this general rule in subsection (3)(a):

This section does not apply to persons riding within an enclosed cab or to any person 16 years of age or older who is operating or riding upon a motorcycle powered by a motor with a displacement of 50 cubic centimeters or less or is rated not in excess of 2 brake horsepower and which is not capable of propelling such motorcycle at a speed greater than 30 miles per hour on level ground.

From his prior encounters with Stone, Bell knew that he was sixteen or older at the time of the incident and knew or should have known that his scooter had a displacement of only 49 cubic centimeters, squarely fitting him into the exception from the helmet and eye protection requirements. Furthermore, the insurance requirement does not apply to Stone, because it applies only in cases of riders of 51cc or greater vehicles, over the age of 21, who elect to purchase insurance rather than wear a helmet. See § Fla. Stat., 316.211(3)(b). Thus, we conclude Bell did not have probable cause to stop Stone for perceived safety violations.

We also reject the State’s contention that even if Bell lacked probable cause, he had a good faith belief that Stone was violating the statute when he called to him. The good faith exception to the exclusionary rule of evidence, which would cure any failure of probable cause and resulting inadmissibility of evidence, is based on an objective standard and expects officers to know the law. See Doctor v. State, 596 So.2d 442, 447 (Fla.1992) (citations omitted); see generally Allstate Ins. Co. v. Bowne, 817 So.2d 994, 997 (Fla. 4th DCA 2002) (citing United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)) (describing good faith exception). It is not unreasonable to expect that a road patrol officer, especially one who had stopped Stone twice in the past based on similar circumstances, should know the law applicable to scooters that travel on the road. Therefore, we conclude that the good faith exception does not apply to Bell’s stop of Stone for perceived safety violations. Consequently, because Bell lacked probable cause to stop Stone for alleged safety violations and the good faith exception does not apply, the trial court’s denial of the motion to suppress the sobriety test results cannot be supported on the basis of these safety violations.

In sum, we conclude that Bell’s hailing Stone was a permissible traffic stop because Bell had probable cause to suspect Stone was committing a traffic violation by driving his scooter with a suspended license. As a result, the trial court did not err by denying Stone’s motion to suppress the sobriety test evidence and we affirm.

AFFIRMED.

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


author: POLEN, J.

text:
    Gary GERBER, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3541.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2003.

      Cindy E. D’Agostino and Barbara J. Scheffer, Palm Beach Gardens, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

This appeal questions the propriety of a trial court modifying the terms of probation nine years after the sentence was imposed, in the absence of any allegation the appellant violated probation. For the reasons stated, we reverse.

In January of 1993, Gary Gerber (“Gerber”) pled guilty to two counts of lewd assault. As a result of the plea, Gerber was sentenced to fifteen years of probation. The terms of the probation included, inter alia, that Gerber have no contact with children under eighteen unless supervised by an adult having knowledge of the charges, that he not leave the county without the consent of the probation officer, and that he allow the probation officer to visit his home and his employment. The order also provided that the probation officer not contact employer.

In July of 2002, Gerber filed a motion to modify the terms of his probation. In the motion Gerber alleged that he had requested numerous travel permits over the years and has never had to produce a written contract in order to be permitted to travel. Gerber also alleged that he now owns his own business and his work is based on verbal agreements. Gerber complained that, after being assigned a new probation officer, he was told he would have to produce a written contract with the person he was doing business with in order to receive a travel permit, or probation would have to contact the individual. Gerber requested that his probation be modified so that he may travel freely for both business and pleasure purposes with the only requirement being that he inform probation of his intended destination and the estimated duration of his stay.

After conducting a hearing, the trial court entered an order modifying the terms of Gerber’s probation. The court reasoned that had the court originally been aware that Gerber was entering the homes of clients, or that he was contemplating becoming self-employed, the court would have imposed either a prohibition against entering the homes or a requirement that the employer or client be notified of Gerber’s sexual offender status. On this basis, the court clarified that the modification that Gerber “not visit any home or an employer/client for any purpose, business, social, or otherwise, without being accompanied by his wife or some other adult fully aware of this case and of Defendant’s status as a Registered Sexual Offender,” was a modification of the existing condition that his employer not be notified of the case or Gerber’s status.

Ultimately the court ordered that Gerber was permitted to continue to work as an independent contractor without his clients being told of his case or his status. In addition, the court ruled that Gerber may not visit any home or an employer/client for any purpose, business, social, or otherwise, without being accompanied by his wife or some other adult fully aware of this case and of Defendant’s status as a Registered Sexual Offender. Last, the court ordered that the department of corrections could not deny his request for out-of-county travel for lack of a signed contract.

On appeal Gerber claims the trial court’s modification of his probation was unconstitutional and violated the prohibition against double jeopardy. We agree.

The Florida Supreme Court has unequivocally held that “the double jeopardy protection against multiple punishments includes the protection against enhancements or extensions of the conditions of probation.” Lippman v. State, 633 So.2d 1061, 1064 (Fla.l994)(citing Williams v. State, 578 So.2d 846 (Fla. 4th DCA 1991)).

Before probation may be enhanced, a violation of probation must be formally charged and the probationer must be brought before the court and advised of the charge. Without proof of a violation, the court cannot change an order of probation by enhancing the terms. Id. at 1064.

In holding that the trial court committed reversible error by enhancing the terms of Lippman’s probation, the court in that case clarified its justification as follows:

even though the district court characterized the trial judge’s order as a supervisory order entered for the protection of the victim and the victim’s siblings rather than a sanction, the motivation for adding these conditions does not change their punitive effect. These “protective” measures required Lippman to leave his employment, move from his residence, and have absolutely no contact with his siblings. The trial judge even acknowledged that the new conditions would be an additional hardship. While such conditions could have been included in the initial probationary order had circumstances required, there is no question that the added conditions are more restrictive than those imposed by the initial order.

Id. at 1063-64.

“The test, according to Lippman, as to whether a modification is really an enhancement, turns on whether the change is more restrictive than the original condition.” Waldon v. State, 670 So.2d 1155 (Fla. 4th DCA 1996). In Waldon, this court found that an added condition was an impermissible enhancement when the added condition allowed the probation officer to require in-patient alcoholism treatment throughout the entire term of probation and the original requirement was that the offender undergo a substance abuse evaluation at the beginning of probation and follow any treatment then recommended by the evaluator. Id.

In the case at bar, the court added the following condition to Gerber’s probation: Gerber may not visit any home or an employer/client for any purpose, business, social, or otherwise, without being accompanied by his wife or some other adult fully aware of this case and of Defendant’s status as a Registered Sexual Offender. The final order of modification calls this addition a modification, rather than an enhancement.

As the court plainly held in Lippman, the trial court’s decision to couch the order in terms of a modification, rather than as an enhancement, has no bearing on the true nature of the adjustment in the terms of a probation order. The terms of the original probation order included a provision that Gerber have no contact with children under eighteen unless supervised by an adult having knowledge of the charges and disposition. However, there were no limitations on his ability to visit the home of employers/clients. Although, upon consideration of Gerber’s motion for modification, the trial court speculated what may have been different had the court been more aware of Gerber’s employment situation, there is no record to support that speculation. Regardless, the terms added to the probation are clearly more restrictive than those in the original probation order. As a result, the trial court imper-missibly enhanced the terms of Gerber’s probation and that order is hereby reversed.

REVERSED.

STEVENSON and SHAHOOD, JJ., concur.


text:
    Michael BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3518.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2003.
    Carey Haughwout, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

This appeal arises out of the conviction of Michael A. Brown for armed robbery of a gas station on October 23, 2001. We find Brown’s primary issue on appeal, that there was insufficient evidence identifying him as the perpetrator, unpersuasive. We write, however, to specifically address whether the shackling of Brown during trial without conducting an evidentiary hearing entitles him to a new trial. The proper standard of review for this issue is abuse of discretion. See Elledge v. State, 408 So.2d 1021, 1022-1023 (Fla.1981) (holding no abuse of discretion by having defendant shackled before jury when threats to attack bailiff are present); Czubak v. State, 644 So.2d 93 (Fla. 2d DCA 1994) (holding while shackling is inherently prejudicial practice, it is permissible tool to be exercised in sound discretion of trial judge when circumstances involving security and safety of proceeding warrant it). We affirm.

Immediately prior to trial, defense counsel moved to have Brown’s shackles removed. The trial court commented that Brown “was rather belligerent” and “was not following directions given him by the court deputies” during a previous court hearing. This created apprehension that Brown posed a security risk in the eyes of the trial court. Therefore, Brown’s motion was denied. The shackles could not be seen by the jury while Brown was seated, since a table obstructed the view. Brown did not request a hearing on this matter, nor did he deny being “belligerent.” The trial court did, however, announce that it would remove the shackles if Brown either testified or displayed his body for the jury during trial so that the shackles would never be seen. Thereafter the State presented its case-in-chief. Brown ultimately displayed his body for the jury, and the shackles were removed for this display.

We find this issue was not properly preserved for appellate review. “In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.” Lacey v. State, 831 So.2d 1267 (Fla. 4th DCA 2002) (citing Tillman v. State, 471 So.2d 32, 35 (Fla.1985)). Prior to trial, Brown requested the shackles be taken off; however, after the trial court stated it reasons for refusing to grant that request, Brown neither requested a hearing to make an inquiry into the necessity for shackles nor did he contest the trial court’s stated reasons. Since the trial court was never given the opportunity to rule upon this specific argument and we find no fundamental error, appellate review is precluded. See Taylor v. State, 848 So.2d 448 (Fla. 4th DCA 2003).

Furthermore, had the issue properly been preserved, we are inclined to believe the trial court had legitimate reasons to shackle Brown and we can see no abuse of discretion. See Bryant, 785 So.2d at 430 (holding that requiring restraint was proper where trial judge had firsthand knowledge of defendant’s incidents of inappropriate and dangerous courtroom behavior). Alternatively, if there was any error, it was at the most harmless error since the jury never saw Brown in the shackles.

AFFIRMED.

KLEIN and STEVENSON, JJ., concur.