text:
    Jerry WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5770.
    District Court of Appeal of Florida, Second District.
    April 14, 2004.

      James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marilyn Muir Becuue, Assistant Attorney General, Tampa, for Appellee.
   CANADY, Judge.

Jerry Wilson appeals his convictions for grand theft and dealing in stolen property following a bench trial. Wilson contends that the circumstantial evidence presented against him at trial was insufficient to rebut his testimony that offered an innocent explanation of his conduct, entitling him to a judgment of acquittal. Wilson also argues that he was improperly convicted of both crimes in connection with the theft of the same property, contrary to the provisions of section 812.025, Florida Statutes (2002), which provide that a defendant may be found guilty of either theft or dealing in stolen property, but not both, when those charges relate to “one scheme or course of conduct.” We conclude that the evidence against Wilson was sufficient to support the dealing in stolen property charge. We conclude, however, that, as the State concedes, it was improper for Wilson to be convicted of both offenses in connection with the theft of the same property. Consequently, we reverse the grand theft conviction.

I. BACKGROUND

At Wilson’s bench trial, the State presented testimony that certain stereo equipment had been stolen in a residential burglary. The State also presented testimony from a pawn shop employee that two stereos taken during the burglary were pawned just hours after the probable time of the burglary. The pawn shop employee testified that the person who pawned these items was Wilson. The- testimony reflected that Wilson had made no effort to conceal his identity during the transaction.

Wilson did not dispute that he had pawned the items, but he adamantly denied having knowledge that the property was stolen. In his defense, Wilson testified that the stolen property in question had been given to him by a person that he knew only by the name of “Bob” or “Uncle Bob.” Wilson claimed that Bob was an individual Wilson had known for three or four years who had fallen upon hard times and needed a place to stay. Wilson stated that he agreed to let Bob reside with him, but only if Bob helped with the rent. Wilson claimed that Bob reneged on his promise to help pay rent and that, after about two weeks of nonpayment, Wilson delivered an ultimatum to Bob to either pay or move out. Wilson alleged that, in response to this ultimatum, Bob gave him the stolen stereo equipment in lieu of rent. Wilson testified that Bob explained his possession of this stereo equipment by stating that it was his and he had been storing it at a friend’s house after leaving his last residence.

Wilson also claimed that he had identified Bob for police and that Bob had been arrested as a result. This testimony conflicted with the testimony of a detective who had investigated the burglary that the police had never been able to identify or contact Bob. The defense also presented testimony from another detective that another person (who was not alleged to be Bob) was arrested for using credit cards that were stolen in the same burglary.

The trial court found Wilson guilty of grand theft and dealing in stolen property. He was acquitted of charges of burglary and providing false information to a pawn broker. He was sentenced to two years of probation.

II. JUDGMENT OF ACQUITTAL

On appeal, Wilson relies on the principle stated in Bradford v. State, 460 So.2d 926, 981 (Fla. 2d DCA 1984), that “where the only proof of guilt is circumstantial, a conviction may not be sustained no matter how strongly the evidence may suggest guilt, unless the evidence is inconsistent with any reasonable hypothesis of innocence.” See also State v. Law, 559 So.2d 187, 188 (Fla.1989). Wilson contends that he was entitled to a judgment of acquittal because the only evidence against him was circumstantial and his testimony set forth a reasonable hypothesis of innocence that was not rebutted by the State. While we acknowledge that the evidence that Wilson knew the property was stolen was circumstantial, we do not agree that he was entitled to a judgment of acquittal.

Section 812.022(2), Florida Statutes (2002), provides that “[pjroof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.”

This court has previously examined the application of section 812.022(2) in Coleman v. State, 466 So.2d 895 (Fla. 2d DCA 1985), a case with distinct similarities to the instant case. In Coleman, the defendant testified and offered an innocent explanation for his possession of recently stolen sailboat parts. This court stated that

where a defendant gives a patently reasonable explanation for his possession of recently stolen goods which is totally unrefuted, and there is no other evidence of guilt, the court must direct a judgment of acquittal. If, on the other hand, the explanation is only arguably reasonable or if there is any evidence which places it in doubt, the court should permit the jury to make the decision.

Id. at 397. We affirmed the defendant’s convictions, noting that

[the defendant], whose credibility was impeached by his admission that he had been convicted of three prior felonies, was found trying to sell the stolen items just a few hours after they had been stolen. To accept [the defendant’s] explanation, it would have to be assumed that someone went to the trouble to steal the sailboat parts from fenced-in premises and yet discarded them in a dumpster shortly thereafter. Moreover, [the defendant] provided no corroboration for his statement that he was in the junk business. The jury was entitled to conclude that [the defendant’s] explanation was unsatisfactory.

Id.; see also Haugabrook v. State, 827 So.2d 1065, 1068-69 (Fla. 2d DCA 2002).

We conclude that Wilson’s explanation was — at best — only “arguably reasonable” and was not “patently reasonable.” Coleman, 466 So.2d at 397. We reach this conclusion because there was á very significant discrepancy between the testimony of Wilson and a detective called as a State witness. Wilson claimed that he identified the person known as “Bob” or “Uncle Bob” for police and that this person was arrested as a result. However, the investigating detective testified that the police were never able to positively identify or contact this person. Further, the defense did not attempt to present any evidence other than Wilson’s testimony, such as a booking record, to support his contention that “Bob” or “Uncle Bob” had been apprehended. The conflict between Wilson’s testimony and the investigating detective’s testimony undermined Wilson’s credibility and placed Wilson’s story highly in doubt. The trial court, as the trier of fact, therefore “was entitled to conclude that [the defendant’s] explanation was unsatisfactory,” id., and that the inference arising under section 812.022(2) was unrebutted. See Law, 559 So.2d at 189 (stating that in circumstantial evidence case where defendant has asserted a hypothesis of innocence State is required “only to introduce competent evidence which is inconsistent with the defendant’s theory of events”).

III. APPLICATION OF SECTION 812.025

Section 812.025 provides that

Notwithstanding any other provision of law, a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts.

The State concedes that this provision precluded Wilson from being convicted of both the dealing in stolen property charge and the grand theft charge. As we noted in Rife v. State, 446 So.2d 1157, 1158 (Fla. 2d DCA 1984), section 812.025 precludes dual convictions for theft and dealing in stolen property only when those charges relate to “one scheme or course of conduct” and thus does not entirely foreclose the possibility of prosecution for both offenses in connection with the same stolen property. However, as was true of the defendant in Rife, Wilson was accused of stealing and selling the same property on the same day. Id. Likewise, nothing in the instant case “meaningfully disrupt[ed] the flow [of Wilson’s conduct] by a clearly disjunctive interval of time or set of circumstances.” Id. Consequently, we conclude that the State correctly concedes error. The State also correctly indicates that the lesser of the two convictions, the grand theft conviction, should be vacated. See id. at 1158; Gray v. State, 611 So.2d 100, 101 (Fla. 1st DCA 1992); T.S.R. v. State, 596 So.2d 766, 767 (Fla. 5th DCA 1992).

VI. CONCLUSION

We affirm Wilson’s conviction and sentence for dealing in stolen property. We reverse his conviction and sentence for grand theft.

Affirmed in part, reversed in part, and remanded.

FULMER and VILLANTI, JJ., Concur.


source: Caselaw Access Project

author: STRINGER, Judge.

license: Public Domain

text:
    Mario ORTIZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2983.
    District Court of Appeal of Florida, Second District.
    April 14, 2004.

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

Mario Ortiz seeks review of the trial court’s judgment and sentence adjudicating Ortiz guilty of aggravated battery with a firearm, causing great bodily harm. This is an Anders appeal raising five issues. We affirm without comment four of the five issues. As to the fifth issue, we find that the trial court erroneously imposed costs of prosecution and investigation in the absence of proper requests and supporting documentation. Ortiz preserved this issue by filing a motion to correct illegal sentence, pursuant to Florida Rule of Criminal Procedure 3.800(b).

Costs for prosecution and investigation imposed under section 938.27(1), Florida Statutes (2001), “must be expressly requested by a specific agency with adequate supporting documentation.” Reyes v. State, 655 So.2d 111, 114 (Fla. 2d DCA 1995); see also Taylor v. State, 821 So.2d 404 (Fla. 2d DCA 2002). Ortiz asserts, and the State concedes, that the trial court erred when it imposed $150 for prosecution costs and $130 for investigative costs without the proper requests and supporting documentation from the State.

Accordingly, we reverse the imposition of prosecution and investigative costs and remand for the trial court to strike the costs. We affirm Ortiz’s judgment and sentence in all other aspects, and the costs may be reimposed on remand if the procedural safeguards required in Reyes are met. See Taylor, 821 So.2d at 405. We note, however, that the expense likely to be incurred by obtaining Ortiz’s presence for a new hearing may outweigh the costs sought by the State.

Affirmed in part, reversed in part, and remanded with instructions.

CASANUEVA and WALLACE, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: FARMER, C.J.

text:
    Douglas J. PHILLIPS, Jr., D.D.S., Appellant, v. BOARD OF DENTISTRY, DEPARTMENT OF HEALTH, STATE OF FLORIDA, Appellee.
    No. 4D01-4581.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2004.

      Amy D. Shield and James M. Tuthill of Amy D. Shield, P.A., Boca Raton, and the Law Offices of James M. Tuthill, West Palm Beach, for appellant.
    Pamela H. Page, Assistant General Counsel, Tallahassee, for appellee.
   FARMER, C.J.

In this license discipline case, the Board of Dentistry (Board), revoked a dentist’s license to practice even though an administrative law judge (ALJ) recommended only a suspension. The Board had charged him with, among other things, practicing below the applicable standard, inadequate record keeping, and failing to have malpractice insurance or establish proof of financial responsibility. On these charges he was found guilty, while he was exonerated of others. We have considered all of his arguments and affirm the Board’s finding of guilt as to the above three charges and proceed to consider the dentist’s claim that the penalty is unauthorized.

The issue raised by the dentist is whether the Board properly increased the recommended penalty. In Criminal Justice Standards & Training Commission v. Bradley, 596 So.2d 661, 663 (Fla.1992), the court recognized that a primary function of professional disciplinary boards is to determine the appropriate punishment for misconduct of the professionals regulated. A professional board has the discretion to increase the recommended penalty as long as: (1) the agency complies with section 120.57(1), Florida Statutes; (2) the statute under which the agency operates provides guidelines for imposing penalties; and (3) the increased penalty falls within the guidelines established by its statute. Id.; Dep’t of Law Enforcement v. Hood, 601 So.2d 1194, 1195 (Fla.1992).

The dentist argues that no rule authorizes a revocation of license for practicing below the applicable standard. But revocation is stated as a penalty for violating section 466.028(l)(x), Florida Statutes (2003) (incompetence or negligence by failing to meet the minimum standards of performance in diagnosis and treatment), as to which the dentist was found guilty. See Rule 64B5-13.005(3)(bb), (cc), Fla. Admin. Code (1995) (describing penalties for incompetence and negligence respectively: “the usual course of action of the Board shall be to impose probation, restriction of practice, suspension, and/or revocation”). Accordingly, revocation was within the range of penalties provided by the Board’s disciplinary guidelines. He also contends that the penalty is not authorized by statute. Clearly it is. See §§ 456.072(2)(b); 466.028(1)00, Fla. Stat. (2003).

As for his claim that the Board violated section 120.57(1), we turn to the pertinent statutory text which states:

“The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction.... When rejecting or modifying such conclusion of law ... the agency must state with particularity its reasons for rejecting or modifying such conclusion of law ... and must make a finding that its substituted conclusion of law ... is as or more reasonable than that which was rejected.... The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action.”

§ 120.57(1)(2), Fla. Stat. (2003). Here, the Board did not merely refer to the record in its final order; rather the Board expressly adopted the exceptions filed by the Department of Health to the recommended order and incorporated them into its final order. Because these exceptions became a part of the order, to which they were attached as an exhibit, the failure of the order itself to duplicate the language of the exceptions does not affect this court’s ability to review the Board’s decision. See Veasey v. Bd. of Pub. Instruction, 247 So.2d 80, 81 (Fla. 4th DCA 1971) (“The critical reason for requiring an administrative agency to state [its] conclusions and orders with specificity is to facilitate judicial review.”); Fla. Power & Light Co. v. State, 693 So.2d 1025, 1027 (Fla. 1st DCA 1997); Lewis v. Dep’t of Prof'l Regulation, 410 So.2d 593, 594 (Fla. 2d DCA 1982); see also Lusskin v. Dep’t of Health, Bd. of Med., 820 So.2d 424, 426 (Fla. 4th DCA 2002), (“Orders that fail to contain the statutorily mandated reasoning and record citation also fail to provide this court with the information necessary to properly review the Board’s action.”).

We distinguish Prysi v. Department of Health, 823 So.2d 823 (Fla. 1st DCA 2002), where the Board’s final order rejected the ALJ’s factual findings and instead accepted the proposed findings set forth in the Department’s exceptions to the recommended order. The agency stands on a different footing with regard to factual findings than it does to legal conclusions involving the specific practice being regulated. An agency may not reject an ALJ’s resolution of contested facts supported by competent evidence, but it need not necessarily defer to the ALJ’s conclusions as to the very law the agency was established to enforce.

We think it important to emphasize, as the supreme court has done, that:

“Although hearing officers are entitled to substantial deference, they are judicial generalists who are trained in the law but not necessarily in any specific profession. The various administrative boards have far greater expertise in their designated specialties and should be permitted to develop policy concerning penalties within their professions.”

Criminal Justice Standards & Training Comm’n v. Bradley, 596 So.2d 661, 664 (Fla.1992) (quoting Hambley v. Dep’t of Prof'l Regulation, 568 So.2d 970 (Fla. 2d DCA 1990) (Altenbernd, J., dissenting)); see also Gross v. Dep’t of Health, 819 So.2d 997, 1002 (Fla. 5th DCA 2002) (“[Mjatters infused with overriding policy considerations are left to agency discretion.”). Here, where the Board faced public policy issues concerning a dentist’s continued use of practices one of its members described as bogus and quackery”, its determination that revocation was appropriate is especially entitled to deference and will not easily be disturbed.

It may seem unfortunate for this dentist that the Board has made him an example of the type of dentistry the Board has decided to discourage. But the Board is given precisely that power. Indeed, its very purpose is to regulate competency in the dental profession.

AFFIRMED.

GROSS and TAYLOR, JJ., concur.

      . This still another example of the propensity of legal writers to use the locution “and/or” when simply “and” or "or” would express the same thought — and more clearly at that. If we thought that this unfortunate use created any ambiguity, we would construe it in favor of the dentist. In this instance, no matter which reasonable way this execrable legalism is read in the sentence, it authorizes a revocation.


author: CANADY, Judge.

text:
    STATE of Florida, Appellant, v. C.C., Appellee.
    No. 2D03-1545.
    District Court of Appeal of Florida, Second District.
    April 14, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Seavino Sieg, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellee.
   CANADY, Judge.

The State appeals an order of the trial court imposing probation on C.C., a juvenile, for the offense of grand theft. The State argues that the imposition of probation was illegal because section 985.314, Florida Statutes (2003), required the court to commit C.C. to boot camp. Because the statute required the trial court to commit C.C. to boot camp or to an equivalent program of similar intensity, we reverse.

Section 985.314(1), Florida Statutes (2003), provides, in relevant part, as follows:

(1) Notwithstanding any other law and regardless of the child’s age, a child who is adjudicated delinquent, or for whom adjudication is withheld, for an act that would be a felony if committed by an adult, shall be committed to:
(a) A boot camp program under s. 985.309 if the child has participated in an early delinquency intervention program as provided in s. 985.305.
(2) In committing a child to the appropriate program, the court may consider an equivalent program of similar intensity as being comparable to a program required under subsection (1).

It was undisputed at the disposition hearing that C.C. had been unsuccessfully discharged from an early delinquency intervention program prior to the grand theft offense. It was also undisputed that the grand theft would have been a felony if committed by an adult. Based upon these undisputed facts, we conclude that the requirement of section 985.314(l)(a) was applicable, requiring a boot camp commitment.

C.C.’s appellate counsel argues that the trial court’s decision not to send C.C. to a boot camp program was appropriate because C.C. was not physically fit enough to participate in such a program. However, the only infirmity that defense counsel suggests that C.C. suffers from is being “at least forty pounds overweight.” The trial court indicated no specific reason that C.C. could not participate in boot camp, stating only that she “was not healthy enough.” The Department of Juvenile Justice counselor agreed that boot camp was probably not appropriate but recommended placement in a moderate risk residential program.

We conclude that the trial court’s imposition of probation was unlawful. We note that the trial court had discretion under section 985.314(2) to select an “equivalent program of similar intensity” for C.C. This section defines the bounds of the trial court’s discretion with respect to the commitment of offenders such as C.C. The probation imposed was not an “equivalent program of similar intensity” to boot camp. Thus, the trial court’s decision did not conform with the requirements of section 985.314.

We reverse the trial court’s order imposing probation and remand this case with instructions that the trial court commit C.C. as required by section 985.314 to a boot camp program or, alternatively, to an equivalent program of similar intensity.

Disposition reversed and remanded.

FULMER and VILLANTI, JJ„ Concur.

      . We note that the entities responsible for boot camp .programs are required to screen those sent to such programs both medically and psychologically. Section 985.309(4) provides:
      The department, county, or municipality operating the boot camp program shall screen children sent to the boot camp program, so that only those children who have medical and psychological profiles conducive to successfully completing an intensive work, educational, and disciplinary program may be admitted to the program. The [Department of Juvenile Justice] shall adopt rules for use by the department, county, or municipality operating the boot camp program for screening such admissions.


text:
    Ford MICHAEL, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2624.
    District Court of Appeal of Florida, Second District.
    April 14, 2004.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

Ford Michael seeks review of the final judgment and sentence adjudicating Michael guilty of resisting arrest without violence and disorderly intoxication. Because the trial court abused its discretion in preventing Michael from cross-examining the arresting officer about prior complaints of excessive force lodged against him, we reverse the conviction and remand for a new trial.

Michael was charged with resisting an officer with violence and disorderly intoxication. A jury convicted him as charged of disorderly intoxication and of the lesser offense of resisting an officer without violence. Michael and the arresting officer were the only two witnesses, and their stories conflicted. Michael’s version of the events surrounding his arrest was that the officer became violent with Michael while questioning him, throwing Michael to the ground, kicking him, choking him, hitting him in the face with handcuffs, and stomping on his legs. This is in conflict with the officer’s testimony that Michael threw a punch at the officer when he attempted to arrest Michael for disorderly intoxication.

At trial, defense counsel was prevented from questioning the officer about prior complaints of excessive force which had been lodged against him. During jury deliberation, the first opportunity afforded by the trial court, defense counsel proffered questions relating to five separate complaints of excessive force leveled against the officer by five named complainants between August 1999 and March 2003. The complaints included such conduct as kicking, breaking ribs, hitting in the head with a flashlight, spitting, and choking.

Although a trial court’s decision on evidence admissibility is subject to the abuse of discretion standard of review, that discretion is limited by the rules of evidence. Sexton v. State, 697 So.2d 833 (Fla.1997); Hinojosa v. State, 857 So.2d 308, 309 (Fla. 2d DCA 2003) (citing Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001)). “The defendant has a right to discredit a witness by showing bias, an interest, and a possible ulterior motive for his testimony,” Caton v. State, 597 So.2d 412, 413 (Fla. 4th DCA 1992) (quoting Phillips v. State, 572 So.2d 16, 17 (Fla. 4th DCA 1990)), and denial of the right to full cross-examination in matters relevant to credibility may easily constitute reversible error. Hinojosa, 857 So.2d at 310.

“Where there is an issue of whether or not excessive force was used by a law enforcement officer, prior investigations into the officer’s use of excessive force in other cases are relevant.” Id. at 310; Henry v. State, 688 So.2d 963, 965-66 (Fla. 1st DCA 1997). Specifically, the officer may have been motivated by the desire to avoid another complaint which could have led to disciplinary action. See, e.g., Mendez v. State, 412 So.2d 965, 966 (Fla. 2d DCA 1982).

In this case, the proffered questions regarding the officer’s five prior complaints of excessive force could have provided the jury with a plausible motive for the officer to misrepresent the facts of the incident in an effort to avoid another excessive force complaint. The trial court abused its discretion in preventing Michael from cross-examining the officer regarding this possible motive. Moreover, because this case came down to a “swearing match” between Michael’s version of events and the officer’s version, we cannot say the trial court’s error was harmless beyond a reasonable doubt. See Chadwick v. State, 680 So.2d 567 (Fla. 1st DCA 1996). Accordingly, we reverse and remand for a new trial.

CASANUEVA and WALLACE, JJ, Concur.


author: DAVIS, Judge.

text:
    INTEGRITY BAIL BONDS, Appellant, v. PINELLAS COUNTY BOARD OF COUNTY COMMISSIONERS, Appellee.
    No. 2D03-3478.
    District Court of Appeal of Florida, Second District.
    April 14, 2004.

      Sean B. Kelley of Roger D. Futerman & Associates, Clearwater, for Appellant.
    Michael A. Zas, Senior Assistant County Attorney, Clearwater, for Appellee.
   DAVIS, Judge.

Integrity Bail Bonds (“Integrity”) challenges the trial court’s denial of its motion to set aside a bond estreature. Because we believe that the State’s amendment of the offense charged was a substantial change from the original charge, we conclude that the court erred in failing to discharge the estreature. Accordingly, we reverse.

Jane Helen Brown was arrested for attempting to obtain a controlled substance by fraud, a third-degree felony. Integrity executed a $5000 appearance bond and power of attorney. Both the bond and the power of attorney specifically stated that the bond guaranteed Brown’s appearance on the charge of attempting to obtain a controlled substance by fraud.

However, about a month later, the State filed an information charging Brown with the more severe offense of attempted trafficking in hydromorphone, a second-degree felony. The State also filed notice of intent to seek restitution. A notice of arraignment, specifying the charge as attempted trafficking in hydromorphone, was sent to both Brown and Integrity. When Brown failed to appear at the arraignment, the bond was estreated. Integrity subsequently moved to discharge the bond estreature on the grounds that the State had substantially changed the charge from a third-degree to a second-degree felony. The trial court denied the motion.

The law provides that “[wjhere the criminal charges are substantially changed from the charges on which the bail bond was originally written, the surety is no longer obligated under the bond.” Midland Ins. Co. v. State, 354 So.2d 961, 962 (Fla. 3d DCA 1978). Criminal charges are considered to be substantially changed where the likelihood of flight is much greater on the amended charge due to greater maximum penalties. See Am. Bankers Ins. Co. v. Monroe County, 644 So.2d 560, 560 (Fla. 3d DCA 1994); Midland Ins. Co., 354 So.2d at 962.

In the instant case, the State increased the charge from a third-degree felony, which carries a maximum prison term of five years, to a second-degree felony, which carries a maximum prison term of fifteen years. See § 775.082(3)(c)-(d), Fla. Stat. (2003). Accordingly, amending the charge from a third-degree to a second-degree felony substantially increased the bail risk to which Indemnity had agreed because Brown’s likelihood of flight substantially increased.

Although the Pinellas County Board of County Commissioners (“BOCC”) argues that Integrity should have objected when it received notice of the amended charge, that is not the law. As observed by the Third District in American Bankers:

Finally, the fact that the surety company did not object when the charges were changed and undertook to look for the defendant when he absconded ... does not, as urged, constitute a waiver of the surety’s rights, because this action in no way amended the surety company’s obligations under the original surety contract. Indeed, there is no showing on this record that the surety company was ever notified of the subject change in charges, much less that it agreed to this change in the surety contract. Clearly, if the state wished to require the surety company to remain legally obligated on the bail bond after the conspiracy charge was added, it should have sought the surety company’s express agreement to this substantial change in the original surety contract. This is so because surety contracts of this nature cannot be substantially amended without the express agreement of both parties to the contract.

644 So.2d at 561-62. Although the surety in American Bankers was not notified of the change, the court made clear that the holding was based on the State’s responsibility to obtain the surety company’s express agreement to any substantial change of charges.

Finally, we are not persuaded by BOCC’s argument that this court in Bankers Insurance Co. v. State ex rel. Hardee County, 437 So.2d 708 (Fla. 2d DCA 1983); imposed a requirement on the surety to object once it receives notification of any substantial change. In that case, we stated: “Moreover, the record does not reveal any objection by Bankers to remaining as surety on the bonds after the amendments to the.information had been approved by the court.” Id. at 709-10. However, we believe that language to be dicta because we had already determined in that case that there had not been a substantial change in the charge. We concluded that although the State had added additional violations, of RICO, the underlying degree of felony and the basic character of the charges remained the same. Id. at 709. The additional cited language in the case regarding the surety’s failure to object was not necessary to the resolution of the case and was merely an observation.

Having determined that the State’s amendment of the offense charged constituted a substantial change from the original charge, we necessarily conclude that the trial court erred in denying Integrity’s motion to discharge the bond estreature and we reverse.

Reversed.

CASANUEVA and VILLANTI, JJ„ Concur.

      . The Pinellas County Board of County Commissioners has been substituted for the State as the appellee in the instant case.


author: VILLANTI, Judge.

text:
    Nancy HOLDSTEIN, Appellant, v. Thomas HOLDSTEIN, Appellee.
    No. 2D03-2471.
    District Court of Appeal of Florida, Second District.
    April 14, 2004.

      Karol K. Williams of Karol K. Williams, P.A., Tampa, for Appellant.
    Wendy A. Makholm-Hoskin and Peter M. Walsh of Peter M. Walsh & Associates, St. Petersburg, for Appellee.
   VILLANTI, Judge.

The Former Wife appeals the trial court’s award of $400 per month in permanent periodic alimony to the Former Husband. Because the trial court’s findings are internally inconsistent with regard to the Former Husband’s need for alimony, we reverse and remand.

The parties divorced after seventeen years of marriage. A mediation agreement incorporated into the final judgment resolved child custody, parental responsibility, visitation, and equitable distribution. As a result, the Former Wife received primary residential custody of the parties’ two children. Mediation was not able to resolve issues relating to alimony and child support, however. Following a hearing, the trial court entered a written final judgment obligating the Former Husband to pay $795.87 per month in child support and the Former Wife to pay $400 per month in permanent periodic alimony. The alimony award is the sole issue on appeal.

The trial court’s findings reflect that the Former Wife, an accountant with an MBA, was the primary breadwinner during the marriage. The Former Husband, who worked mostly in retail sales throughout the marriage, is a recovering alcoholic and takes lithium for bipolar disorder. Although the Former Wife’s income substantially exceeds the Former Husband’s, the findings indicate that her expenses also exceed his, which is not unexpected given her role as the primary residential custodian of the children. The trial court determined her monthly deficit was $2431.32, and although our review suggests that some of the Former Wife’s expenses could have been subject to reduction, no scenario was presented whereby the deficit could be totally eliminated. Moreover, the trial court made no finding that the Former Wife’s expenses were not valid. The evidence and the findings in the final judgment are consistent with regard to the Former Wife’s present inability to pay.

With respect to the Former Husband’s financial situation, however, the trial court’s findings are inconsistent. The final judgment’s alimony section states that the Former Husband has a monthly deficit of $301.68. This amount comes from the Former Husband’s April 9, 2002, financial affidavit. In the child support section, however, the final judgment specifically states that the trial court “does not accept” the Former Husband’s income as reported on his April 9, 2002, financial affidavit. (Emphasis added.) Instead, the trial court determined the Former Husband’s net monthly income was $2387.11. If, in fact, the Former Husband’s income were $2387.11, he would no longer have a monthly deficit and would actually have a monthly surplus of $113.11.

Despite the inconsistencies in the final judgment regarding the Former Husband’s need and despite the Former Wife’s $2431.32 monthly deficit, the trial court ordered the Former Wife to pay the Former Husband $400 per month in permanent periodic alimony. The internal inconsistency in the final judgment’s findings as to the Former Husband’s income makes it impossible for this court to determine whether the Former Husband truly established a need for alimony. We therefore reverse and remand for clarification of the Former Husband’s financial need. See Duffy v. Duffy, 721 So.2d 391 (Fla. 5th DCA 1998) (reversing and remanding on the sole ground that the factual findings in the final judgment were inconsistent); Donsky-Levine v. Levine, 688 So.2d 467 (Fla. 4th DCA 1997).

We also note that although the Former Wife demonstrated no ability to pay at this time, that showing does not preclude the trial court from awarding nominal alimony if the Former Husband’s need is established on remand. See Blanchard v. Blanchard, 793 So.2d 989, 992 (Fla. 2d DCA 2001); Fusco v. Fusco, 616 So.2d 86 (Fla. 4th DCA 1993). Reversed and remanded.

WHATLEY and CASANUEVA, JJ., Concur.

      . We are aware that this was a long-term marriage, which creates a presumption in favor of permanent alimony. See Hill v. Hooten, 776 So.2d 1004, 1007 (Fla. 5th DCA 2001). Despite this presumption and the other evidence the Former Husband presented to demonstrate his need for permanent alimony, the inconsistencies in the final judgment's findings with regard to his actual need necessitate reversal and remand.


author: NORTHCUTT, Judge.

text:
    Alfred BROWN, Appellant, v. DEPARTMENT OF REVENUE o/b/o Betty L. GRAVES, Appellee.
    No. 2D03-2378.
    District Court of Appeal of Florida, Second District.
    April 14, 2004.
    Alfred Brown, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Toni C. Bernstein and William H. Branch, Assistant Attorneys General, Tallahassee, for Appellee.
   NORTHCUTT, Judge.

Alfred Brown, an inmate in the Florida prison system, challenges the circuit court’s denial of his motion to abate child support during his period of incarceration. We reverse the order and remand to the circuit court to reconsider his motion in light of Department of Revenue v. Jackson, 846 So.2d 486 (Fla.2003).

Reversed and remanded.

STRINGER and KELLY, JJ., Concur.


author: FULMER, Judge.

text:
    Bryan Darrell ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2667.
    District Court of Appeal of Florida, Second District.
    April 14, 2004.
    James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   FULMER, Judge.

Bryan Darrell Allen appeals an order designating him a sexual predator pursuant to the Florida Sexual Predators Act (the Act), section 775.21, Florida Statutes (2002). Allen argues that the Act violates procedural due process. We affirm. See Milks v. State, 848 So.2d 1167 (Fla. 2d DCA 2003), review granted, 859 So.2d 514 (Fla.2003). In doing so, we certify conflict with Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003), notice of appeal filed, No. SC03-2103 (Fla. Nov.10, 2003).

DAVIS and CANADY, JJ., concur.


author: SILBERMAN, Judge.

text:
    Thomas BENTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3784.
    District Court of Appeal of Florida, Second District.
    April 14, 2004.
   SILBERMAN, Judge.

Thomas Benton appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because Benton raised a facially sufficient claim based on newly discovered evidence that is not refuted by the record, we reverse and remand for an evidentiary hearing.

Benton was charged with count one, first-degree murder, count two, armed robbery, and count three, possession of a firearm by a convicted felon. Benton stated in his motion that counts one and two were severed from count three and tried before a jury, while count three was simultaneously tried before the trial judge based on the evidence presented during the jury trial. The jury acquitted Benton on counts one and two, but the trial judge convicted him on count three.

Benton alleged that at trial, several witnesses placed him at the scene of the events giving rise to the charges. He acknowledged that witnesses testified that he had been talking to and struggling with the victim, but he claimed that no one testified to seeing him shoot the victim or having possession of a gun. Benton also alleged that while in prison he learned of a previously unknown eyewitness, Tony La-von Williams. Benton asserted that neither he nor his trial attorney previously knew of Williams’ identity, location, or proposed testimony and that Williams’ testimony would have demonstrated that Benton was innocent; An affidavit from Williams was attached to the motion.

In the affidavit, Williams stated that on the day in question, he saw the victim speaking with a man other than Benton. The victim and the man walked behind a tree and Williams turned away. After about two minutes, Williams heard a scream and a gunshot. He turned around and saw the man and the victim struggling over something in the- man’s hands and then the victim fell to the ground. Williams stated that he did not see Benton with a gun that day.

The judge who considered the postcon-viction motion was not the same judge who had conducted the trial and sentencing. In the order denying relief, the postconviction judge' referred to comments made by the trial judge. A portion of the sentencing hearing transcript was attached to the order denying relief and reflects that the trial judge stated the following:

And the issue in this case was identification; There were four, as I recall, four witnesses who identified Mr. Benton as being the shooter. And the Court concluded that those identifications were correct. The jury obviously concluded that they were not sure whether they were correct. I don’t know what they concluded.

On the basis of these comments, the post-conviction judge concluded that it was unlikely that the newly discovered evidence would support an acquittal on retrial.

In reviewing the denial of Benton’s motion, “the claims must be either facially invalid or conclusively refuted by the record.” Peede v. State, 748 So.2d 253, 257 (Fla.1999); see also McLin v. State, 827 So.2d 948, 954 (Fla.2002). Absent an evidentiary hearing, the defendant’s factual allegations must be accepted to the extent they are not refuted by the record. Peede, 748 So.2d at 257. In McLin, the Florida Supreme Court noted that an evi-dentiary hearing may not be required where the newly discovered evidence is “obviously immaterial” to the verdict. 827 So.2d at 956 (citing Robinson v. State, 736 So.2d 93, 93 (Fla. 4th DCA 1999)). Ordinarily, however, an evidentiary hearing is required for the trial court to determine whether the newly discovered evidence would probably produce an acquittal on retrial. Id. at 956; Jones v. State, 591 So.2d 911, 915 (Fla.1991).

In making this determination, “the judge will necessarily have to evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial,” so that the appellate court can “fully evaluate the quality of the evidence which demonstrably meets the definition of newly discovered evidence.”

McLin, 827 So.2d at 956 (quoting Jones, 591 So.2d at 916).

Benton’s allegation that none of the trial witnesses testified they had seen him with a gun or shoot the victim was unrefuted. Additionally, in his affidavit Williams stated that someone other than Benton was struggling with the victim and that he did not see Benton with a gun. While Williams did not see the actual shooting, his affidavit unmistakably suggests that someone other than Benton shot the victim.

The limited record that is before us does not demonstrate that the evidence contained in Williams’ affidavit is “obviously immaterial.” Further, because much of what Benton alleged was unrefuted, an evidentiary hearing is required for the trial court to determine whether the new evidence would probably produce an acquittal on retrial. The portion of the sentencing transcript attached to the order denying relief reflects that identity was an issue at trial. The excerpt also contains the trial judge’s observation that the judge and the jury came to differing conclusions as to whether the witnesses correctly identified Benton as the perpetrator. These differing conclusions, which apparently flowed from a single trial, are evidenced by the jury’s acquittal of Benton for murder and armed robbery and the trial judge’s convicting Benton of possession of a firearm by a felon.

Because the record excerpt attached to the order denying relief did not conclusively refute Benton’s claim and because the evidence identified in Williams’ affidavit is not “obviously immaterial,” we reverse and remand for an evidentiary hearing, including a determination of whether the evidence is, in fact, newly discovered.

Reversed and remanded.

WHATLEY and VILLANTI, JJ., concur.


author: PER CURIAM.

text:
    EAST COUNTY WATER CONTROL DISTRICT, Petitioner, v. LEE COUNTY, Florida, Respondent.
    No. 2D04-268.
    District Court of Appeal of Florida, Second District.
    April 16, 2004.
    Kenneth G. Spillias of Lewis, Longman & Walker, P.A., West Palm Beach, for Petitioner.
    James G. Yaeger, County Attorney, and John S. Turner, Assistant County Attorney, Fort Myers, for Respondent.
   PER CURIAM.

East County Water Control District (the District) seeks a writ of prohibition to bar the circuit court from exercising jurisdiction over a “complaint of intervenor” that Lee County filed in an action that the court previously had dismissed with prejudice. We conclude that the trial court lacks jurisdiction to proceed with the new complaint within the dismissed proceeding. Therefore, we grant the petition and issue the writ.

Lehigh Acres Lot Owners Association (the Association) filed an action against the District in December 2000. The lawsuit involved a dispute over assessments paid to the District by the members of the Association. In October 2002, Lee County moved to intervene, claiming that it had “a substantial interest in the pending action.” It asked to intervene as a “party plaintiff’ pursuant to Florida Rule of Civil Procedure 1.230. The circuit court granted Lee County’s motion but it specified that Lee County would be “a third-party interve-nor” in the action. Although these quoted legal descriptions of Lee County’s status may not be critical in this case, it is important that the court’s order did not grant Lee County the right to plead without being subordinate to the main action. Lee County did not file a complaint or any other pleading seeking affirmative relief when it was granted intervention status.

In July 2003, the District and the Association filed a stipulation for entry of a final judgment. On July 31, 2003, the circuit court entered a final judgment dismissing the Association’s claim against the District with prejudice. The record reflects that Lee County was served with these documents. Lee County did not object to the dismissal or move for rehearing of the final judgment.

For reasons that are not clear in our record, in September 2003, the District filed a motion to dismiss Lee County from the action, even though it had already been dismissed with prejudice. The circuit court held a hearing on the District’s motion, and the District lost. The circuit court denied the District’s motion to dismiss and permitted Lee County to file a “complaint of intervenor.” The District maintains that the circuit court lacks jurisdiction to proceed with Lee County’s claim within an action that had been dismissed with prejudice.

We conclude that this matter, which was first raised in the circuit court, is controlled by our decision in 84 Lumber Company v. Cooper, 656 So.2d 1297, 1298 (Fla. 2d DCA 1994). As in 84 Lumber, Lee County is attempting, as an interve-nor, to proceed with litigation within an action that the circuit court has already dismissed with finality. Although a circuit court clearly can have subject matter jurisdiction over this type of dispute, it has no jurisdiction to hear a new claim brought within a case that has been terminated by a dismissal with prejudice. See also Oceanair of Fla., Inc. v. Beech Acceptance Corp., 545 So.2d 443 (Fla. 1st DCA 1989) (filing of joint stipulation for dismissal with prejudice terminated litigation instantaneously so that trial court was without jurisdiction to act upon party’s motion for default of settlement agreement).

Lee County’s intervention prior to the dismissal of this action does not change this result. Although Florida Rule of Civil Procedure 1.230 permits a non-party to intervene in a timely manner, intervention “shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion.” Nothing in the rule or in the orders entered by the circuit court in this case gave Lee County the right to override the voluntary dismissal between the parties when they settled the claim. Lee County was on notice of the dismissal and took no action to file an independent claim within the initial action prior to its dismissal with prejudice.

Similarly, in Hoechst Celanese Corp. v. Fry, 693 So.2d 1003 (Fla. 3d DCA 1997), the plaintiffs filed a class action against the manufacturers of raw materials used in plumbing systems. After a similar action filed by mobile home owners was stayed in Marion County, the owners’ motion to intervene was granted. The class then settled with the manufacturers, and the case was dismissed. After the dismissal, the intervenors filed an amended complaint and a motion to certify a class. The Third District concluded that the circuit court did not have jurisdiction to entertain the class certification motion made pursuant to an amended complaint “because the owners initially appear in the action below solely as intervenors pursuant to Rule 1.230” which “specifically provides that ‘the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion;’ ” Fry, 693 So.2d at 1008; see also Colucci v. Greenfield, 547 So.2d 224 (Fla. 3d DCA 1989).

Our decision, however, may have little practical impact. Instead of dismissal, the proper remedy was to direct the clerk of the court to docket the complaint filed by Lee County in November 2003 as a new action. That new action could proceed upon payment of the applicable filing fee and service of process upon the District. Cf. Payette v. Clark, 559 So.2d 630, 632-33 (Fla. 2d DCA 1990) (reversing dismissal of two civil claims filed in .closed probate proceeding and directing trial court to sever and transfer them to the appropriate division of the court). The order of dismissal entered in the earlier case would have no effect on the new action.

We therefore grant the petition and issue the writ.

ALTENBERND, C.J., and NORTHCUTT and WALLACE, JJ„ Concur.

      . See MCR Funding v. CMG Funding Corp., 771 So.2d 32 (Fla. 4th DCA 2000) (conflicting with 84 Lumber on the issue of when a parly may challenge the court's power to decide the issue of jurisdiction).

      . The order on appeal in Hoechst was a nonfi-nal order granting class certification in the cause below. The Third District did not reach the asserted challenges to that order based upon its independent determination from the record that the circuit court lacked jurisdiction to enter that order originally.


text:
    William KIELY, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2127.
    District Court of Appeal of Florida, Second District.
    April 16, 2004.

      James Marion Moorman, Public Defender, and Richard J. D’Amico, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

In this belated appeal, William Kiely challenges his corrected sentences in five cases. We affirm in all respects but write to address Kiely’s arguments that the trial court improperly imposed corrected sentences (1) without Kiely being present; (2) by departing from the sentencing guidelines without giving reasons for the departures; and (3) by departing from the sentencing guidelines in violation of Kiely’s plea agreement.

First, Kiely did not have a right to be present at the hearing at which his sentences were corrected because the trial court merely performed the ministerial function of imposing sentences that had already been pronounced. See Smith v. State, 870 So.2d 61, 63, 2003 WL 22514546, 2003 WL 22514609 (Fla. 2d DCA Nov. 7, 2003); Windisch v. State, 709 So.2d 606 (Fla. 2d DCA 1998).

Second, the issue of whether the trial court erred by not giving reasons for departure sentences as required by section 921.0016(c), Florida Statutes (1997), has not been preserved for appeal. Kiely’s trial counsel did not object to the sentences at the time of sentencing, and Kiely did not raise this issue in a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b). See § 924.051, Fla. Stat. (1997); Fla. R.App. P. 9.140(b)(2)(A)(ii)(d); Maddox v. State, 760 So.2d 89 (Fla.2000); Johnson v. State, 697 So.2d 1245 (Fla. 1st DCA 1997).

Third, the issue of whether the trial court’s departure from the sentencing guidelines violated the plea agreement also has not been preserved for appeal. Kiely did not file a motion to withdraw his plea as required by Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(b). See Wallace v. State, 835 So.2d 1281, 1282 (Fla. 2d DCA 2003).

Accordingly we affirm without prejudice to any right Kiely may have to file a timely, non-successive, facially sufficient motion for ineffective assistance of trial counsel or a timely, facially sufficient petition alleging ineffective assistance of appellate counsel.

Affirmed.

NORTHCUTT and SALCINES, JJ., Concur.

      . By prior order we granted Kiely’s petition to allow him to proceed with this belated, direct appeal from the trial court's corrected sentencing orders of May 4, 1998, in trial court case numbers 91-168, 96-403, 97-619, 97-620, and 97-621.

      . The parties acknowledge that Kiely has previously filed motions for postconviction relief that have been decided on the merits. Should Kiely file additional postconviction motions, this opinion shall not be construed as precluding the trial court from determining whether such motions are successive. See Fla. R.Crim. P. 3.850(f). Further, our opinion shall not be construed as suggesting that Kiely’s appellate counsel in this proceeding has been ineffective.


author: CASANUEVA, Judge.

text:
    STATE of Florida, Appellant, v. Georgette A. WASHINGTON, Appellee.
    No. 2D02-3003.
    District Court of Appeal of Florida, Second District.
    April 23, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellee.
   CASANUEVA, Judge.

The State of Florida appeals a suppression order in which the trial court determined that Georgette A. Washington had standing to challenge the search of a home pursuant to a search warrant and that the search warrant was executed in violation of Florida’s knock and announce statute, section 933.09, Florida Statutes (2001). Because we conclude that Ms. Washington lacked standing to object to the search, we do not reach the issue of whether the search warrant was executed in compliance with section 933.09. We do note, however, that there is record evidence to support the trial court’s conclusion that the statute’s requirements were not met.

At the hearing on Ms. Washington’s motion to suppress, Tampa Police Officer Eric Houston testified that when the officers entered the residence they found in plain view in the living room area ten baggies of marijuana on the floor next to Ms. Washington. They arrested her for possession of contraband with intent to distribute. Ms. Washington was not a resident of the home and provided the officer a different home address. She told the arresting officer that she was a guest of the owner, had been there for several hours, planned on staying several more because a party was in progress, but had no intention of staying overnight. There was no evidence that any of her personal belongings were kept at this residence.

Although the issue here is generally framed as one of “standing,” the Supreme Court in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), refused to employ only the traditional concept of standing when analyzing Fourth Amendment rights; instead, it stated that “the definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.” Id. at 140, 99 S.Ct. 421. To successfully claim the protection afforded by the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched and that this expectation is reasonable. Id. at 143, 99 S.Ct. 421. The expectation of privacy must originate from “a source outside the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Id. at 143 n. 12, 99 S.Ct. 421. The capacity to claim constitutional protection depends upon the person and not merely upon a property right in the invaded place. Id. at 143, 99 S.Ct. 421 (citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)).

With this as our analytical guide, Ms. Washington’s rights will be determined by her status as a guest at “the invaded place,” among other factors, and whether that status affords her a legitimate expectation of privacy that arises from real property concepts or from concepts that society otherwise recognizes as legitimate. We must look to the totality of circumstances to determine if her expectation of privacy is reasonable. State v. Suco, 521 So.2d 1100 (Fla.1988); Dean v. State, 478 So.2d 38 (Fla.1985) (adopting the single-treatment analysis of Rakas and holding that in determining whether a defendant is entitled to contest the legality of a search and seizure, the court must take into consideration the substantive Fourth Amendment issues as well as the concept of standing). Two other decisions of the United States Supreme Court that discuss the status of guests will aid in determining whether her claim to constitutional protection is valid.

First, in Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990), the Court held that an overnight guest possessed a legitimate expectation of privacy and was thus entitled to the protection of the Fourth Amendment. The Court reasoned that staying overnight is a longstanding social custom in our nation, one “that serves functions recognized as valuable by society.” Id. at 98, 110 S.Ct. 1684. “From the overnight guest’s perspective, he seeks shelter in another’s home precisely because it provides him with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside.” Id. at 99, 110 S.Ct. 1684. Here, Ms. Washington was a guest but not an overnight one. Therefore, Olson does not confer upon her sufficient authority to challenge the search.

The second case is Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). The defendant, a guest in another’s apartment, was observed bagging cocaine there. He sought to suppress the cocaine, arguing that it was seized improperly. The Court reiterated “that in order to claim the protection of • the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable.” Id. at 88, 119 S.Ct. 469. Based on Rakas and Olson, the Supreme Court reversed the suppression order, finding that the case fell between the situation of the overnight guest in Olson, who enjoyed the protection of the Fourth Amendment, and of one merely legitimately on the premises, who did not. Because the defendant in Carter was engaged in a purely commercial activity in the apartment, had been there a relatively short period of time, and lacked any previous connection with the lessee, the Court concluded that his situation was closer to that of a person who is simply permitted on the premises. The defendant, therefore, had no legitimate expectation of privacy in the apartment; and the Court denied him the protection of the Fourth Amendment because he lacked standing to claim it. Carter, 525 U.S. at 91, 119 S.Ct. 469.

Like the defendant in Carter, Ms. Washington shares the similar status of an invited guest. But unlike the defendant in Carter, Ms. Washington was a social guest, not one engaged in a business endeavor. Thus, the holding of Carter does not fully resolve the issue presented, but the opinion does provide further guidance in its discussion of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).

The Carter Court noted that in Jones the’defendant was afforded the protections of the Fourth Amendment because the evidence showed that he had been given the use of a friend’s apartment, kept clothing there, had slept there at least once before, and at the time of the search was the sole occupant of the apartment. Carter, 525 U.S. at 89, 119 S.Ct. 469. The Carter Court, while observing that the holding of Jones was still valid and distinguishing its facts from Carter’s circumstances, concluded that a defendant who is merely present with the consent of the owner or lessee cannot claim the protection of the Fourth Amendment. Carter, 525 U.S. at 90, 119 S.Ct. 469.

These cases also undergird the holding of Hicks v. State, 852 So.2d 954 (Fla. 5th DCA 2003), which is most similar, factually, to Ms. Washington’s situation. In Hicks, the court found that the defendant had no standing to challenge the seizure of items from a room in a house where he was a short-term, nonovernight invitee, in spite of the fact that the seized items were on top of his backpack. Id. at 959. - The defendant did, however, have standing to contest the seizure of items contained within his closed backpack, id. at 960, because he possessed a reasonable expectation of privacy there. See also United States v. Lockett, 919 F.2d 585 (9th Cir. 1990) (denying standing to the defendant who was engaged in a joint criminal venture at the residence, but who was neither a resident of the premises nor a holder of a proprietary interest in the residence, and who showed no control or supervision over the residence that could support a legitimate expectation of privacy); People v. Cowan, 31 Cal.App.4th 795, 37 Cal.Rptr.2d 469 (1994) (denying standing to an occasional visitor who had no control over the premises); People v. Koury, 214 Cal.App.3d 676, 262 Cal.Rptr. 870 (1989) (holding that a defendant has a reasonable expectation of privacy in his closed and locked luggage but not in the residence itself where he was only a casual visitor); Draper v. State, 641 So.2d 1283 (Ala.App.1993) (holding that a defendant who was an acquaintance of the apartment lessee, and who had asked her if he could come there to shower and cut his hair, had no standing); State v. Anonymous (1984-1), 40 Conn.Supp. 20, 480 A.2d 600 (1984) (holding that a babysitter had standing to object to a search and seizure because as caretaker of the child she had a socially acceptable expectation of privacy and an obligation to protect the child from harm, which obligation encompassed the right of excluding others from the premises).

Based on Jones, Rakas, Olson, Carter, and Hicks, we conclude that Ms. Washington, enjoying only the status of a short-term, nonovernight, casual guest, possessed no legitimate expectation of privacy in the residence where she was arrested. Therefore, because she lacked standing to object to the search of the home and the seizure of the contraband found next to her in plain view on the floor, the trial court erred in granting her motion to suppress.

Reversed and remanded for further proceedings.

DAVIS and VILLANTI, JJ., Concur.


text:
    Edward David WOODARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1504.
    District Court of Appeal of Florida, Second District.
    April 23, 2004.
    James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Edward David Woodard entered a plea of nolo contendere to failing to register as a sexual predator while reserving his right to appeal, on procedural due process grounds, the constitutionality of the Florida Sexual Predators Act. In support of his due process argument, Woodard cites Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003), which conflicts with this court’s decision in Milks v. State, 848 So.2d 1167 (Fla. 2d DCA), review granted, 859 So.2d 514 (Fla.2003). We reject Woodard’s due process argument, see id., affirm his judgment and sentence, and certify conflict with Espindola.

Affirmed; conflict certified.

NORTHCUTT and DAVIS, JJ., concur.


text:
    Richard V. PRUITTE, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-5279.
    District Court of Appeal of Florida, Second District.
    April 23, 2004.
   PER CURIAM.

Affirmed. See Teal v. State, 862 So.2d 871 (Fla. 2d DCA 2003); McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003). As this court did in both Teal and McCall, we certify direct conflict with Richardson v. State, 884 So.2d 950, 2003 WL 21697171 (Fla. 4th DCA July 23, 2003).

Affirmed; conflict certified.

SALCINES, STRINGER, and SILBERMAN, JJ., Concur.


text:
    Bryan Allen SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-5864.
    District Court of Appeal of Florida, Second District.
    April 23, 2004.
   PER CURIAM.

Affirmed. See Teal v. State, 862 So.2d 871 (Fla. 2d DCA 2003); McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003). As this court did in both Teal and McCall, we certify direct conflict with Richardson v. State, 884 So.2d 950, 2003 WL 21697171 (Fla. 4th DCA July 23, 2003).

Affirmed; conflict certified.

SALCINES, STRINGER, and SILBERMAN, JJ., Concur.


text:
    William AUGUSTINE, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D02-52, 4D02-639.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Smith v. State, 818 So.2d 707 (Fla. 5th DCA 2002).

WARNER, KLEIN and HAZOURI, JJ., concur.


text:
    Canwoot DONONOVAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2425.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Davis v. State, 839 So.2d 734 (Fla. 4th DCA 2003).

WARNER, KLEIN and HAZOURI, JJ., concur.


author: STONE, J.

text:
    WAL-MART STORES, INC., d/b/a Walmart, a Delaware corporation authorized to and doing business in the State of Florida, Appellant, v. Mark CARUSO, Appellee.
    No. 4D03-761.
    District Court of Appeal of Florida, Fourth District.
    June 2, 2004.

      John R. Hamilton of Foley & Lardner, Orlando, for appellant.
    Richard E. Retamar of The Retamar Law Firm, Deerfield Beach, and Dirán V. Seropian of Caruso & Burlington, P.A., West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

STONE, J.

We deny Appellee’s motion for rehearing. However, we withdraw our opinion dated March 31, 2004, and substitute the following opinion:

We reverse a judgment entered on a jury verdict against Wal-Mart Stores, Inc. based on counts for breach of contract and negligence. Caruso contracted to practice optometry in Wal-Mart’s vision center. The claim for breach of contract arose out of Wal-Mart’s failure to renew the contract. The negligence claims arose from an incident in which a Wal-Mart employee, Femesha Foster, attempted to poison Caruso.

In 1998, Caruso and Wal-Mart entered into the contract, pursuant to which Caruso would practice optometry at the store for one year. The contract provided that a percentage of Caruso’s gross sales receipts would be paid to Wal-Mart as rent and for administrative services provided by Wal-Mart. Upon termination of the contract, in September 1999, the parties entered into a renewal agreement, which included a net revenue guarantee to Caruso for another year, ending September 2001.

Caruso claims Wal-Mart entered into another extension of the contract until September 1, 2002 and, alternatively, that Wal-Mart’s failure to renew the contract was in retaliation for Caruso’s lawsuit against Wal-Mart.

The record reflects that Wal-Mart hired Foster to assist Caruso in the vision center. At some point during the interview process, Foster mentioned that she used to work for a doctor; however, she did not list a doctor on her application as a previous employer. In fact, Foster had stolen checks and destroyed files during the course of that employment. As a result, Foster was arrested and convicted. While Wal-Mart never contacted that doctor, they called Foster’s listed previous employers and verified that she was a dependable employee.

While Foster was working under Caruso, the vision center suffered numerous thefts. To combat this, Patricia O’Brian, who worked in the “loss prevention” department, installed a security camera in Caruso’s office. Caruso and O’Brian planned that Caruso would leave his checkbook on his desk in order to “catch a thief.” On the morning of the incident, O’Brian told Caruso that she would watch the surveillance camera throughout the day.

Later that day, Caruso bought lunch and brought it to his desk to eat. Coincidentally, O’Brian left the surveillance screen momentarily unattended. She testified that, upon seeing Caruso sitting at his desk, she thought that it was a good time for her to also get lunch. Upon finishing his lunch, Caruso returned to work and left an opened can of Dr. Pepper on his desk. While Caruso was away from his desk, the video camera captured Foster putting rat poison into Caruso’s Dr. Pepper can. Upon returning to his desk, Caruso took a sip of the drink and noticed it contained suspicious granules. Caruso notified O’Brian that he suspected he may have been poisoned. The surveillance video revealed that Caruso had, in fact, been poisoned by Foster. Caruso was taken to the hospital for observation and treatment.

Caruso maintains that O’Brian was negligent in leaving the surveillance screen temporarily unattended and that Wal-Mart acted negligently in hiring and retaining Foster.

We conclude that the trial court erred in denying Wal-Mart’s motion for directed verdict as to the contract claim because there was no evidence of a new agreement, that would extend Caruso’s contract through September 1, 2002, or preclude Wal-Mart from declining to renew the expired contract. Rather, the terms of the agreement entered into by Caruso and Wal-Mart expressly and unambiguously stated that the contract was for a definite period of time and provided no restriction as to Wal-Mart’s ability to decline renewal. As there was no remaining contractual relationship between Caruso and Wal-Mart after August 2001, the trial court erred in denying Wal-Mart’s motion for directed verdict.

We note that Caruso, in his answer brief, argues that this court should affirm the breach of contract verdict because Wal-Mart failed to provide Caruso with an assistant, pursuant to the terms of the agreement, for the last seven months of his contract. This is a completely different theory than that which was pled or argued in the lower court. Further, the issue was not tried by consent. Although Wal-Mart failed to provide Caruso with the assistant for a period of time, the evidence that includes this fact was introduced and relevant to support Caruso’s claim that he was damaged by Wal-Mart’s failure to renew his contract in retaliation for filing civil charges. Therefore, as Caruso never moved to amend the pleadings to include the additional argument and, as the evidence supporting the additional argument was relevant to another claim, he is barred from arguing the issue for the first time on appeal. See Dober v. Worrell, 401 So.2d 1322, 1323 (Fla.1981).

With regard to the negligence claims, Wal-Mart cannot be found negligent in its surveillance of Caruso’s office because Wal-Mart did not owe Caruso a duty to protect him from harm that was not foreseeable. An owner of a premises is only required to protect against criminal acts by third parties if the act is reasonably anticipated and the owner had actual or constructive knowledge of the specific danger. Relyea v. State, 385 So.2d 1378, 1383 (Fla. 4th DCA 1980); Highlands Ins. Co. v. Gilday, 398 So.2d 834, 836 (Fla. 4th DCA 1981).

Although Wal-Mart agents knew that larcenies had been committed in the vision center, the knowledge did not provide Wal-Mart with the requisite notice that Foster would attempt to commit a violent criminal act. or pose a risk to physical safety. Caruso acknowledged that he never suspected Foster as the one who had committed the thefts, nor did he suspect Foster would attempt to poison or otherwise injure him. Additionally, even if Wal-Mart assumed a special duty to “catch a thief,” it still did not assume a duty to protect Caruso from bodily harm as a result of an unforeseeable criminal act. See Malicki v. Doe, 814 So.2d 347, 362 (Fla.2002) (“The core predicate for imposing liability is one of reasonable foreseeability-the cornerstone of our tort law.”). Therefore, Caruso failed to make a prima facie case of negligence or negligent hiring.

Further, liability for the negligent retention of an employee occurs in circumstances where the employer knows or should have known that the employee was unfit. Malicki, 814 So.2d at 362. In Malicki, the supreme court recognized that a court need only look to whether “the specific danger which ultimately manifested itself could have reasonably been foreseen” as a result of hiring or retaining an employee. Id. at 363. Based on the foregoing reasoning, Caruso also fails to make a prima facie case for negligent retention.

We, therefore, reverse and remand for entry of judgment in favor of Wal-Mart.

GROSS and HAZOURI, JJ., concur.


author: KLEIN, J.

text:
    Jorge CRUZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2173.
    District Court of Appeal of Florida, Fourth District.
    June 16, 2004.

      Gary Kollin of Gary Kollin, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

We affirm appellant’s conviction, but reverse for resentencing. His scoresheet incorrectly included points for burglary of a dwelling even though he was convicted of burglary, and contained other errors.

Appellant moved to correct his sentence under rule 3.800(b)(2), and a successor judge corrected his scoresheet by reducing the total sentence points from 67.8 to 28.4, but refused to order a resentencing hearing. She reasoned that the five-year sentence originally imposed would not be an illegal sentence even under the corrected scoresheet.

We reverse based on Fortner v. State, 830 So.2d 174 (Fla. 2d DCA 2002), in which the court held that a resentencing hearing was necessary under similar circumstances. The state argued in Fortner, as it does here, that the error was harmless, but the Second District disagreed, stating that the error could not be harmless unless the record conclusively shows that the trial court would have imposed the same sentence with the corrected score-sheet. As we noted, in this case a different judge corrected the scoresheet, and under Fortner, with which we agree, the error in not resentencing cannot be harmless.

The state cites Hummel v. State, 782 So.2d 450 (Fla. 1st DCA 2001), in which the court interpreted Heggs v. State, 759 So.2d 620 (Fla.2000) to find a scoresheet error harmless if the same sentence could have been imposed under a corrected scoresheet without a departure. The Second District, adhering to Fortner, certified direct conflict with Hummel in Anderson v. State, 865 So.2d 640 (Fla. 2d DCA 2004). We disagree with Hummel.

We reverse for a resentencing hearing based on Fortner and Anderson and certify direct conflict with Hummel.

POLEN and GROSS, JJ., concur.


author:
WHATLEY, Judge.
      VILLANTI, Judge, CASANUEVA, Judge,

text:
    ISLAND, INC., a Florida corporation, and Beach Development, Inc., a Florida corporation, Appellants, v. The CITY OF BRADENTON BEACH, a Florida municipal corporation, Appellee.
    No. 2D03-3628.
    District Court of Appeal of Florida, Second District.
    June 23, 2004.
    Rehearing Denied Aug. 19, 2004.
    John P. Harllee, III, and Brian L. Trimyer of Harllee & Bald, P.A., Bradenton, for Appellants.
    Gregory W. Hootman of Gregory W. Hootman, P.A., Sarasota, for Appellee.
   WHATLEY, Judge.

Island, Inc. and Beach Development, Inc. appeal the final judgment affirming the denial by the City Commission of the City of Bradenton Beach of their petition for two small-scale development amendments to the City’s comprehensive plan. The Appellants sought the amendments to change the designation of their property on the future land use map of the City’s comprehensive plan from preservation, a classification which permits no development, to medium/high residential/tourist in order to construct a duplex on each of their two lots. We reverse.

“[S]mall-scale development amendments sought pursuant to section 163.3187(l)(c) are legislative decisions which are subject to the fairly-debatable standard of review.” Coastal Dev. of N. Fla., Inc. v. City of Jacksonville Beach, 788 So.2d 204, 210 (Fla.2001). “The fairly debatable standard of review is a highly deferential standard requiring approval of a planning action if reasonable persons could differ as to its propriety.” Martin County v. Yusem, 690 So.2d 1288, 1295 (Fla.1997). This court reviews the trial court’s application of the fairly debatable standard de novo. Martin County v. Section 28 P’ship, Ltd., 772 So.2d 616 (Fla. 4th DCA 2000). The “fairly debatable” rule is a rule of reasonableness. Lee County v. Sunbelt Equities, II, Ltd. P’ship, 619 So.2d 996, 1002 (Fla. 2d DCA 1993).

The trial court erred in finding that, based on the evidence that was before the City Commission at the public hearing on the Appellants’ petition, the City’s denial of the Appellants’ petition was fairly debatable. The Appellants presented expert testimony, including from the City’s own land planner, showing that the designation of the Appellants’ property as preservation was erroneous because the property did not meet the definition of preservation. They also presented evidence, and the trial court found, that Manatee County had taxed the property as R-3, i.e., residential, property, and the mayor’s son had been issued a license to operate a sailboat rental business on the property, which activity is not allowed on preservation property. The City, on the other hand, presented only the testimony of neighboring property owners and individuals who had been on either the City Commission or the Citizens’ Advisory Council at the time the comprehensive plan was formulated and adopted or who were on the City Commission at the time the Appellants’ petition was denied. Although these individuals testified that the City intended for the property to be designated preservation and maintained as open space, they presented no testimony rebutting the expert testimony that the property did not meet the definition of preservation. Cf. Section 28 P’ship, Ltd., 772 So.2d 616 (holding that developer did not meet its burden to show that County’s action in denying its petition to amend comprehensive plan was so unreasonable and capricious as to not be fairly debatable in face of County’s overwhelming evidence, including testimony from prominent experts, supporting its decision).

We conclude that the trial court erred in finding, based on the evidence that was before the City Commission at the public hearing on the Appellants’ petition, that the City’s denial of the Appellants’ petition was fairly debatable. Reasonable persons could not differ in concluding that the Appellants were entitled to a small-scale amendment to the comprehensive plan because their property was improperly designated preservation.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

VILLANTI, J., Concurs specially with opinion.

CASANUEVA, J., Dissents with opinion.

VILLANTI, Judge,

Concurring specially.

While recognizing the stringent requirements of the fairly debatable rule as eloquently set forth by the dissent, if there ever were a case in which the standard were to apply in favor of the landowner, this is that case. The underlying testimony was dominated by expert opinion germane to more than one topographical issue, including whether the soil content of the subject parcel was composed of the type that made it eligible to receive preservation classification. Absolutely all of the expert opinion and supporting data was unrefuted; i.e., that the preservation classification was imposed in error. See State Dep’t of Transp. v. Myers, 287 So.2d 257, 261 (Fla. 1st DCA 1970). The citizens’ input regarding their recollections and personal preferences for the uses, if any, to be made of the owner’s land was simply conclusory in nature and insufficient here to overcome the objective and unrefuted expert input. Thus, in my view the fairly debatable rubicon was crossed long ago, and hence I fully concur in the majority opinion.

CASANUEVA, Judge,

Dissenting.

Because I am not persuaded that our standard of review permits reversal in this case, I respectfully dissent.

In Coastal Development, 788 So.2d at 205, the Florida Supreme Court held that “the small-scale development amendment decisions made pursuant to section 163.3187(l)(c), Florida Statutes (Supp. 1996), are decisions which are legislative in nature and subject to the ‘fairly debatable’ standard of review.” The court further defined “fairly debatable standard of review” as a

highly deferential standard requiring approval of a planning action if reasonable persons could differ as to its propriety. In other words, an ordinance may be said to be fairly debatable when for any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity.

Id. at n. 1 (quoting Martin County, 690 So.2d at 1295 (citations deleted)). Thus, where reasonable persons could differ as to the propriety of the planning action, it should be affirmed.

The Coastal Development case addressed a split among the district courts concerning the vehicle for and scope of review of the denial of a petition to amend a comprehensive plan. The question was whether the circuit court could exercise only its limited certiorari jurisdiction or could conduct a trial de novo. The supreme court concluded that a “challenge to a local government’s decision on a small-scale development amendment may be commenced as an original action in the circuit court,” Coastal Development, 788 So.2d at 210, and remanded for the circuit court to proceed on Coastal Development’s action for declaratory and injunctive relief.

Therefore, in the original declaratory judgment action in the circuit court in this case, the trial court received and validly considered evidence in addition to the cold record of the various public hearings leading to the City’s action. On our review, this court must decide whether, as a matter of law, the City’s exercise of its legislative authority was at least fairly debatable. See Section 28 P’ship, 772 So.2d at 619. In assessing whether the circuit court’s decision was legally correct, this court is no less constrained by the fairly debatable standard than was the circuit court and must also afford a high degree of deference to the governmental body’s legislative decision. With those principles in mind, I would affirm the circuit court.

Legislative decisions necessarily involve policymaking decisions or formulations. In this context, the City was required to decide whether to amend its established growth policies or to preserve the status quo, which necessitated an evaluation of “whether the small-scale development amendment being proposed meets the future land use and needs of the community.” Fleeman v. City of St. Augustine Beach, 728 So.2d 1178, 1180 (Fla. 5th DCA 1998). For the circuit court to conclude that the City’s decision was arbitrary and capricious, the Appellants carried the considerable burden of proving that the City’s action was not based on any evidence that a reasonable mind would accept to support its conclusion. See Smith v. City of W. Palm Beach, 756 So.2d 166, 167 (Fla. 4th DCA 2000) (citing Town of Indialantic v. Nance, 400 So.2d 37, 40 (Fla. 5th DCA 1981), approved, 419 So.2d 1041 (Fla.1982)).

To support their position, the Appellants focused on the lack of expert testimony before either the City Commission or the circuit court demonstrating that the designation of the property as “preservation” on the future land use map (FLUM) was appropriate. In the future land use section, the comprehensive plan describes the preservation land use category as follows:

The preservation Land Use Category is intended for areas considered to be vital for the maintenance and recharge of water resources, areas of unique or valuable topographic or subsurface features, and areas of significant environmental or ecological importance (e.g., coastal beach soils) which should be preserved.

The Appellants contend that the City did not and could not rebut its expert evidence that the primary determinant for whether property was designated preservation in the comprehensive plan depended upon its soil type, specifically, that lands containing what are known as “beach soils” were to be designated as preservation. Their experts asserted that the property proposed to be developed did not contain beach soils or beach sands. Other experts and officials opined that the area was not topographically, environmentally, or ecologically unique. Based upon this evidence, a consultant and a City planning official both determined that the preservation designation either derived from a scrivener’s error in the drawing of the map or was predicated upon incorrect data.

In support of the denial of the petition, concerned neighbors and commissioners commented at the public hearing that granting the amendment would be inconsistent with the express goals and policies of the comprehensive plan. At the de novo trial on the petition for declaratory judgment, the City developed additional evidence concerning those goals. When the comprehensive plan was being formulated, a prime consideration behind designation of this particular property as preservation was to promote the general public policy of controlling beach erosion, a significant issue for the City of Bradenton Beach then and now. Members of the committee responsible for developing the plan walked up and down the beaches and designated the area preservation because of the dune construction on that site. That part of the beach had always been known as a “hot spot,” where water would come across the road, not only during storms but with high tides; and the dunes helped minimize intrusion of water into the road. These witnesses rebutted any notion that the map had been incorrectly drawn.

In addition, a commissioner at the time the City enacted the comprehensive plan ordinance testified that the area was designated preservation not only to minimize beach erosion but also to achieve the City’s goal of obtaining grants for renourishing the beaches. A prerequisite to the beach renourishment grants is that the public be afforded as much access to and view of the water as possible. Another commissioner stated that he voted against this petition based upon his personal knowledge of the City’s shorelines, particularly in the affected area. The Appellants’ expert evidence had not overridden his concern for the health, safety, and welfare of neighboring citizens whose property might be subject to flooding if the Appellants’ property were developed.

This very brief summary of the evidence leads me to the inescapable conclusion that the denial of the petition emanated from the City’s valid exercise of its legislative powers. The Appellants have promoted a far too limited concept of the legislative powers of a city faced with a petition to amend its comprehensive plan. And, in reversing the circuit court, the majority has failed to afford the City the high degree of deference that appellate courts are required to pay governmental bodies when reviewing their legislative, policy-driven decisions.

By concentrating on the definition of “preservation,” the Appellants have ignored the fact that the FLUM is only one component of any comprehensive plan:

The future land use element designates “proposed general distribution, location, and extent of the uses of land for residential uses, commercial uses, industry, agriculture, recreation, conservation, education, public buildings and grounds, other public facilities, and other categories of the public and private uses of land.” ... The FLUM is a pictorial depiction of the future land use element and is supplemented by written “goals, policies, and measurable objectives.” The FLUM must be internally consistent with the other elements of the comprehensive plan.

Coastal Dev., 788 So.2d at 208 (citing, in nn. 20-21, § 163.3177(6)(a), (7), Fla. Stat. (Supp.1996)). Furthermore, “the comprehensive plan as a whole, consists of legislative policies that must be applied to determine what uses can be made of a specific tract of land.” Thomas G. Pelham, Quasi-Judicial Rezonings, 9 J. Land Use & Envtl. Law 282, 300 (1994), cited in Martin County v. Yusem, 664 So.2d 976, 981 (Fla. 4th DCA 1995) (Pariente, J., dissenting).

Although I would hold that it is at least arguably debatable that the property in question was appropriately designated preservation on the narrow ground that it was within an area of “valuable topographic or subsurface features” and that it was an area “of significant environmental ... importance,” I do not believe that the issue in this case was so limited. Like the Fourth District in Section 28 Partnership, 772 So.2d at 620, this court should consider whether the City presented any evidence, beyond a fair debate, that its decision to maintain the status quo in the land use plan was “reasonable from a planning, economic, environmental, and fiscal responsibility standpoint.” Thus, appropriate evidence before the City and the circuit court could and did include other aspects of the City’s legislative decision to deny the amendment, such as its legitimate interests in keeping the area undeveloped to accomplish its goals of diminishing beach erosion, minimizing flooding, preserving dune systems, encouraging the renourishment of its beaches, maintaining open areas, controlling traffic in the event of major storms, and limiting property damage from potential flooding.

The goals and policies the witnesses described are explicitly delineated in the comprehensive plan, and the FLUM is consistent with the other elements of the plan. For instance, the glossary describes “preservation” as “[a]reas that need to be protected” and provides some examples of that concept, including “systems peculiar to the region ... such as beach and dune systems fronting the Gulf of Mexico.” The executive summary to the plan describes “a number of unique ecosystems that can be found in the vicinity of the City of Bradenton Beach. This includes the Gulf side beaches and associated dune vegetation .... ” Throughout the plan are references to the difficulties the City has faced with erosion of its beaches, the need to engage in beach renourishment projects, and its experience with flooding caused by tides and major storms. The explicit goal behind the plan’s policies is to maintain the primarily residential character of this barrier island city while preserving one of its most significant features — its beaches.

Finally, there is evidence in the record that the City considered the development rights of the owners of affected properties when it enacted the preservation designation. Essentially, in its effort to preserve the beaches, the City gave the owners the right to build developments of greater density on the bay side than on the gulf side. Thus, even though the City’s action, in my view, constituted a lawful exercise of its legislative authority, to the extent that the City’s decision also constituted a taking without just compensation and deprived the Appellants of all economically viable use of its land, the Appellants could maintain an action for inverse condemnation, provided that they have standing to do so. In such a case the City’s burden would be significantly greater. Rather than relying simply on the validity of its exercise of legislative powers, the City would be required to identify specific principles of nuisance and property law that would prohibit the proposed use of the land without the payment of compensation. See Lucas v. S. Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992).

In conclusion, I reiterate the opinion of the Fourth District in Section 28 Partnership, 772 So.2d at 621: “Where, as here, there is evidence in support of both sides of a comprehensive plan amendment, it is difficult to determine that the [City’s] decision was anything but ‘fairly debatable.’ ” I would affirm the decision of the circuit court.

      . Small-scale development amendments to comprehensive plans are governed by section 163.3187(l)(c), Florida Statutes (2003).