author: BRYAN, BEN L., Jr., Associate Judge.

text:
    Emanuel “Manny” NEWMAN and Dr. Gary Brecher, Appellants, v. Hugh BRECHER, and Anne Guttenberg, individually, jointly, severally, and as Trustee of the Rose Libson Estate, Stanley Guttenberg, and Elaine Galatta Brecher, Appellees.
    No. 4D03-2680.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2004.
    Rehearing Denied Dec. 10, 2004.

      Barry R. Cohen of Law Offices of Barry R. Cohen, North Miami, for appellants.
    John J. Glenn and Gregory A. Anderson of Anderson, St. Denis & Glenn, P.A., Boca Raton, for appellees.
   BRYAN, BEN L., Jr., Associate Judge.

The appellants, Emanuel “Manny” Newman and Dr. Gary Brecher, sued Hugh Brecher and Anne Guttenberg alleging that they unduly influenced their mutual aunt, Rose Libson, in the execution of a trust.

Defendants, appellees, counterclaimed, alleging abuse of process. At the close of plaintiffs’ case, the court granted a motion for directed verdict finding the evidence insufficient to establish a prima facie case for undue influence. Evidence was received on the counterclaim. Defendants, appellees, voluntarily dismissed the counterclaim prior to submission to the jury.

Appellants assert that the trial judge erred by weighing the evidence, excluding evidence of undue influence occurring subsequent to the execution of the trust and denying their motion to reopen their case and admit evidence submitted by defendants.

The evidence submitted of undue influence was that after the death of Rose’s spouse in 1988, Anne, the only family member that lived near Rose, began to assist her. Hugh, who lived elsewhere, began to visit her on a regular basis. In 1988 Rose executed a will leaving her assets equally to her sister, niece and three nephews. In September 1991, Anne took Rose to the office of Kenneth Rubin, an attorney. She executed a will and trust leaving $20,000 to each of her grand nieces and nephews, with the remainder to go to Hugh and Anne equally. In March 1992 she amended the trust leaving Gary and Emanuel $1,000 each and reducing the distribution to her sister and grand nieces and nephews. In 1997 Hugh moved to Florida. Rose gave him a power of attorney. He undertook responsibility for her personal affairs. Hugh and Anne acted as Rose’s primary caregivers until her death in September 2000.

At trial, Gary testified that through 1991 Rose seemed normal and never complained much about her health. He knew of nothing Hugh did to improperly influence Rose. Similarly, Emanuel testified that he knew of no specific acts of Hugh or Anne which constituted undue influence over Rose.

Excerpts of Hugh’s deposition were read. He knew Mr. Rubin (who had been his father’s attorney), but had not recommended him to Rose and had no conversations with him about the will or trust. Rose gave Hugh a $74,000 certificate in 1994 and other monetary gifts between 1997 and 2000.

Anne’s deposition testimony read into evidence was that she had a copy of the trust before Rose died and that Rose made several gifts to her, including her home, during the 1990’s.

Charles Devchacko, a physician specializing in psychiatry and human behavior, opined that Rose was susceptible to undue influence. His opinion was based upon a review of her medical records. He opined that she may have suffered from thyrotoxi-cosis, a toxic condition of the thyroid, that can affect a person’s emotions. She may have been suffering from some anxiety and could have had symptoms of early stages of dementia in 1991. Devchacko had never met Rose:

The parties agree that the burden of proof in suits alleging undue influence is codified in section 733.107, Florida Statutes (2003).

That statute provides that once the proponent of the will/trust establishes its formal execution and attestation, the burden is on the contestant to establish the grounds for revocation. However, this burden shifts to the proponents when the contesting party presents sufficient facts to raise a presumption of undue influence. A presumption of undue influence arises if the plaintiff establishes that the defendant (1) occupied a confidential relationship with the. testator, (2) was a substantial beneficiary, and (3) was active in processing the instrument.

In In re Estate of Carpenter, 253 So.2d 697 (Fla.1971), the Supreme Court set out non-exclusive factors that courts could consider on the issue of undue influence or active procurement. The factors include:

(a) the presence of the beneficiary at the execution of the will; (b) presence of the beneficiary on those occasions when the testator expressed a desire to make a will; (c) recommendation by the beneficiary of an attorney to draw the will; (d) knowledge of the contents of the will by the beneficiary prior to execution; (e) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will; (f) securing of witnesses to the will by the beneficiary; and (g) safekeeping of the will by the beneficiary subsequent to execution.

Id. at 702.

The listed criteria are only general guidelines and a will contestant is not required to prove them all to establish active procurement. Each case is fact specific.

The facts in Raimi v. Furlong, 702 So.2d 1273 (Fla. 3d DCA 1997), are similar to this case. The third district found them insufficient to establish active procurement or undue influence. See also Flohl v. Flohl, 764 So.2d 802 (Fla. 2d DCA 2000).

The trial judge found that the only evidence of undue influence was that Rose changed her 1988 will in 1991 and 1992. The court ruled that simply changing a will is not evidence of undue influence. There were factual disputes as to whether Rose was adequately cared for or whether the brothers liked each other, but there were no factual issues relative to the procurement of the will/trust. No evidence was offered of any improper actions by Hugh. Anne’s transporting Rose to a lawyer’s office and remaining in the waiting room for over an hour does not establish active procurement/undue influence. Therefore, the directed verdict was properly entered.

Appellants also assert that the trial judge erred in excluding evidence of gifts and transfers to Hugh and Anne that occurred after the execution of the trust and will. While broad latitude should be allowed to explore the relationship of parties both before and after the time around which the inquiry centers, the court determined in this case that the gifts were remote in time. Except for the home, the gifts to Hugh and Anne were more than three years after the execution of the trust. Even if admissible, the gifts provide no evidence of active procurement of the trust.

Finally, appellants assert that the trial judge abused his discretion by denying their motion to reopen the case to admit evidence presented by appellees on their counterclaim as evidence of active procurement. The trial court has broad discretion on this type motion. The evidence that appellants wanted to utilize on their claim was that of attorney Rubin who testified that Rose stated she had been told she had to leave a token payment to Emanuel and Gary, and even after his advice that she did not, insisted on doing it anyway. Appellants assert that it can be inferred that the person who told Rose this was either Hugh or Anne. In light of Mr. Rubin’s additional testimony that Rose’s accountant’s wife recommended him, that he met with her individually and she did not seem to be influenced by anyone else, that he discussed her intent and was comfortable with her responses and that he never spoke with Hugh or Anne regarding the trust, there was no abuse of discretion by the trial judge.

The final judgment is affirmed.

STONE and WARNER, JJ., concur.

      . That will was prepared by Barry Eden who either was a partner of or shared an office with Ken Rubin. He subsequently retired.

      . Marsha Soforenko worked for both Eden and Rubin and witnessed all the documents.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Philip DEPASQUALE, Appellant, v. Fatima UPEGUI, Appellee.
    No. 3D04-1569.
    District Court of Appeal of Florida, Third District.
    Sept. 29, 2004.
    Rehearing and Rehearing En Banc Denied Dec. 1, 2004.
    Lawrence J. Roberts, Coral Gables, for appellant.
    Fatima Upegui, in proper person.
    Before COPE, GERSTEN, and GREEN, JJ.
   PER CURIAM.

Philip Depasquale (Depasquale) appeals the trial courts order vacating a signed and sealed mediation agreement. We reverse.

At a court ordered mediation, the parties reached a settlement agreement. The agreement was reduced to writing and executed by both sides and their attorneys. Having met the requirements of Florida Rule Civil Procedure 1.730(b), we find this to be a binding settlement agreement. See Fla. R. Civ. P. 1.730(b); Jordan v. Adventist Health System/Sunbelt Inc., 656 So.2d 200 (Fla. 5th DCA 1995). As there was no basis to set aside the mediation agreement, we determine the trial court committed reversible error. Accordingly, we reverse and remand with instructions to reinstate the mediation agreement.

Reversed and remanded.


author: FARMER, C.J. MAY, J., PER CURIAM.

text:
    Rush LIMBAUGH, Petitioner, v. STATE of Florida, Respondent.
    No. 4D03-4973.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 2004.
    Order Denying Rehearing and Certifying Question Nov. 17, 2004.

      Roy Black, Jackie Perczek and Christine Ng of Black, Srebnick, Kornspan & Stumpf, P.A., Miami, for petitioner.
    Barry Krischer, State Attorney for the Fifteenth Circuit, and James L. Martz, Assistant State Attorney, West Palm Beach, for respondent.
    Mary E. Baluss, Washington, D.C., and Brian A. Kahan of Kahan & Associates, P.L., Boca Raton, for Amici Curiae National Foundation for the Treatment of Pain, and Florida Pain Initiative.
    Jon May of May & Cohen, P.A., Fort Lauderdale, Randall C. Marshall of ACLU Foundation of Florida, Inc., Miami, Professor Michael Masinter, Nova Southeastern University, Fort Lauderdale, and Robert C. Buschel of Buschel, Carter,- Schwartzr-eich & Yates, Fort Lauderdale, Amicus Curiae American Civil Liberties Union of Florida, Inc.
    Nancy W. Gregoire of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A., Fort Lauderdale, and Andrew Schlafly, AAPS General Counsel, New York, NY, for Amicus Curiae The Association of American Physicians & Surgeons, Inc.
   FARMER, C.J.

In this petition for certiorari, we are asked to decide whether the authority of the State to seize medical records in a criminal investigation by search warrant is limited by a patient’s right of privacy. We conclude that the State’s authority to seize such records by a validly issued search warrant is not affected by any right of privacy in such records.

The background may be briefly sketched. Police received statements from two individuals that they had sold petitioner “large quantities” of Hydrocodone and Oxycontin “over the course of many years.” Acting on this information, police obtained a list of petitioner’s prescriptions from a local pharmacy. These records are described as showing that petitioner had obtained prescriptions for controlled substances from four different physicians within a five-month period. Police then began investigating whether petitioner should be charged with violating the “doctor shopping” statute.

Police prepared an affidavit and obtained search warrants. See § 933.07(1), Fla. Stat. (2003). The warrants described the items to be seized as:

“[R]ecords specifically and only pertaining to [petitioner] including the medical records, medical questionnaire, cash receipts, sections of appointment book pertaining to [petitioner], canceled checks, medical insurance forms submitted or prepared to be submitted to insurance companies, computerized records related to the ordering of narcotics, DEA prescriptions numbers and forms, records of dispersing or issuing prescriptions for controlled substances, written and or computerized pertaining only to [petitioner].”

In keeping with the actual text of the warrant application, we read the warrants as seeking only those medical records “related to the ordering of narcotics, DEA prescriptions numbers and forms, records of dispersing or issuing prescriptions for controlled substances, written and or computerized pertaining only to [petitioner].” A Judge issued the warrants after review of the affidavit. These warrants were directed to the offices of three physicians and a clinic (providers) from which petitioner had received medical care and services, including prescriptions.

According to petitioner, in producing the records none of the providers made any distinction as to which of their records pertained to prescriptions and which did not. In response to the warrants, all of the providers simply turned over to the police all of petitioner’s medical records in their possession.

After police received the records, they placed them under seal, and the State Attorney sent the following notice to petitioner:

“The State is presently investigating a possible violation of Florida State Statute 893.13 against your client [petitioner], Pursuant to Florida State Statute 395.3025(4)(d) and F.S.S. 933, the State has seized thru a lawfully obtained search warrant the medical records and/or files of your client.... This was done November 25, 2003.
“This letter will serve as notice to you, as council [sic] for [petitioner] that 10 days from the date of the same, the State will move to unseal those medical records and/or files which were seized on November 25, 2003, and sealed without viewing any of the contents in the presence of the administrator or doctor pending your opportunity to be heard on your clients right [sic] privacy issues, in reference to the ongoing investigation.
“This letter constitutes proper notice as contemplated by Florida State Statute 395.3025(4)(d).
“Any legal objection to this action must be submitted in writing to the undersigned prior to the expiration of the ten day period.”

Petitioner’s attorney responded by invoking all of his rights. He objected to the seizure and any review of the medical records. He specifically referred to a claimed right of privacy in personal medical affairs. Although no criminal charges had yet been filed against petitioner, he demanded that the matter be set for hearing before a Judge.

Petitioner then filed a petition for certio-rari in the circuit court, praying that the court quash the search warrants and bar the State from again seizing his medical records on account of what he described as bad faith in seeking the warrants without prior notice to him. Ultimately a hearing was held before a Circuit Judge. Although the Judge received extensive oral argument from petitioner’s counsel, he refused to accept evidence and also denied a request for leave to file a written memorandum after the hearing. The court denied all relief. Petitioner then filed an appeal to this court, which we have treated as a petition for certiorari to review the decision of the circuit court.

Because the circuit court’s jurisdiction of this case arose from a petition for certiora-ri, and our review here has been based not by appeal of right but only by certiorari, we briefly explain our jurisdiction. In this kind of second tier review, our jurisdiction is quite limited. See Combs v. State, 436 So.2d 93 (Fla.1983) (in second tier review, district courts should not be as concerned with mere existence of legal error as much as with seriousness of error and should be allowed a large degree of discretion so that they may judge each case individually); Haines City Community Dev. v. Heggs, 658 So.2d 523 (Fla.1995) (standard of review for certiorari in district court in reviewing order of circuit court acting in its review capacity is whether circuit court afforded procedural due process and whether circuit court applied correct law, which is synonymous with observing essential requirements of law); Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla.2000) (cautioning district courts to be prudent and deliberate when deciding to exercise second tier review, but not so wary as to deprive litigants and the public of essential justice).

Petitioner contends that his constitutional right of privacy has been violated as a result of the issuance of the search warrants without any prior notice to him and an adversarial hearing to determine whether such warrants should have been issued. He argues that unless this court reviews the decision, his right of privacy will be lost without any appellate court ever considering the matter until the damage had long since been done. Owing to the nature of the right asserted, and the absence of any pending case against petitioner in which he might raise the issue, we deem the nature and context of the right asserted important enough to exercise our discretion in favor of review at this point. We deem it necessary to consider the underlying issue, namely whether Florida law recognizes a right of privacy in medical records that would limit the State’s use of search warrants in regard to medical records in a criminal investigation.

Petitioner’s primary argument is that this court should recognize a general rule that the State may not use search warrants to avoid a constitutional right of privacy in medical records. He asks us to hold that search warrants for medical records are subject to a right of privacy in the Florida Constitution. The provision he relies on says that “[ejvery natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.” Art. I, § 23, Fla. Const. (1980) (privacy amendment).

From its general text, one might have thought that article I, section 23, did have the effect of restricting the government’s power to seize personal medical records, even under the separate constitutional article relating to searches and seizures. See Art. I, § 12, Fla. Const. (“The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the ... things to be seized ... and the nature of evidence to be obtained.”). Because article I, section 28, lacks any stated authority to seize personal medical records merely because they are relevant, one might have supposed they would be immune even from search warrants. Moreover, because the United States Constitution has been interpreted to exclude any right of privacy in search and seizure cases under the Fourth Amendment, one might also suppose that the addition of a separate right of privacy to the Florida Constitution inaugurated specific privacy protection as to issues arising under article I, section 12. These intuitions are not the law, however.

In 1982, the voters of Florida amended article I, section 12, on searches and seizures to conform its interpretation to the United States Supreme Court’s construction of the comparable provision in the Fourth Amendment. This “conformity amendment” had been proposed by the Florida Legislature to reverse the Florida Supreme Court’s construction of article I, section 12, which among other things had refused to recognize a good faith exception to the warrant requirement that the United States Supreme Court had found in the Fourth Amendment.

Since then the Florida Supreme Court has made clear that, as a result of the conformity amendment, the right of privacy in article I, section 23, has no application to searches and seizures complying with article I, section 12. In State v. Hume, 512 So.2d 185 (Fla.1987), the court said:

“right-of-privaey provision, article I, section 23, of the Florida Constitution, does not modify the applicability of article I, section 12, particularly since the people adopted section 23 prior to the present section 12.”

512 So.2d at 188. One year later, the court said that it had “rejected the contention that our right-of-privacy provision under article I, section 23, of the Florida Constitution prohibited the introduction of [defendant’s conversation in his home with an undercover police officer].” Madsen v. State, 521 So.2d 110, 110 (Fla.1988). In State v. Hester, 618 So.2d 1365 (Fla.1993), the court restated that “our right of privacy provision, article I, section 23, does not modify the applicability of article I, section 12, particularly since section 23 was adopted prior to the present section 12.” 618 So.2d at 1366; see also State v. Jimeno, 588 So.2d 233 (Fla.1991) (same). Because the privacy amendment came before the conformity amendment, the privacy amendment does not apply to cases to which article I, section 12, is applicable. Logically, therefore, any statutes enacted after the adoption of the conformity amendment could have no different application in the context of search and seizure than article I, section 23, itself does.

Nevertheless, petitioner reads a right of privacy restriction into the State’s power to seize medical records by search warrant. He implicitly acknowledges that search warrants are designed to seize relevant evidence upon a showing of probable cause under article I, section 12. Notwithstanding that recognition, however, he concludes that search warrants are not suffi-dent to protect his privacy interests in items protected by the constitution.

Petitioner also relies on Florida’s medical records subpoena statutes in arguing that he was entitled to notice and a hearing before the State could seize and review his medical records. One statute, found in chapter 395, deals with the regulation of hospitals. The other, found in chapter 456, generally regulates all health care providers other than hospitals. Both statutes were originally passed at the same time in a different form. See Ch. 83-108, Laws of Fla. (introducing notice requirement for issuance of subpoenas for medical records). It is important to note that the Legislature enacted these statutes one year after the conformity amendment was adopted.

Although these are separate statutes, their text is identical in substance. First, they require health care providers to recognize a right of privacy in medical records. Second, they establish that outsiders may not subpoena such records from medical providers without prior notice to the patient. It is true that the subpoena provision is a subdivision of the two statutes and that they are not labeled as subpoena statutes. We also recognize that the primary thrust of these two statutes is to require health care providers to recognize their patient’s right of privacy in the records they create and maintain. Yet, for purposes of this case, the operative effect of the statutes really lies only in the subdivisions limiting the use of subpoenas for medical records.

We do not believe the Legislature’s purpose in enacting these subpoena statutes had anything to do with search warrants, a term that appears nowhere within either of them. Their rather limited purpose was to correct a practice in the use of subpoenas for medical records in both civil and criminal cases by private and governmental lawyers. Before these statutes were adopted, subpoenas for discovery and trial were readily obtainable by any attorney without judicial supervision. The attorney could serve a subpoena without any prior notice or permission. Usually the records were not in the possession of the patient, who might not even be a formal party in the case. Private medical records of this kind are usually kept by third party providers of medical services. Under this old procedure, attorneys could obtain subpoenas merely by asking the Clerk for them. In fact, attorneys could (and did) carry subpoenas around in their briefcases, issued in blank by the Clerk for this purpose. This practice was in wide-spread use. These statutes were apparently intended only to alter this former use of subpoenas where medical records are concerned. Since their enactment, the Legislature has amended them several times, but not in any way material to the issue we face today. It should be carefully noted that these subpoena statutes were adopted one year after the people of Florida adopted the conformity amendment to our State Constitution.

Because this case involves search warrants, not subpoenas, the issue really turns on the content of the search warrant statutes. Nothing in any statute purports to limit the use of search warrants in regard to medical records. Section 933.02(3) expresses no limitations as to the kind of property that may be had by a search warrant. To the contrary, section 933.02(3)’s term any property self-evidently includes medical records because of the absence of any limiting text. And the presence of one actual limitation in subsection (2) of 933.07(1) demonstrates beyond any quibble that when the Legislature proposes to restrict search warrants as to specified property it will say so in the statute.

As we said, the statutes affirming a right of privacy in medical records apply only to subpoenas. Therefore, we take the omission of any reference to search warrants as a plain legislative decision that search warrants for medical records are not affected by these provisions. See Dobbs v. Sea Isle Hotel, 56 So.2d 341, 342 (Fla.1952) (“The legislature made one exception to the precise language of the statute of limitations. We apprehend that had the legislature intended to establish other exceptions it would have done so clearly and unequivocally.”). In short, by their clear terms, neither of the two subpoena statutes on which petitioner relies would seem to have any application when the State proceeds by search warrant. Yet petitioner argues that Judges should interpret them to have that effect.

In construing statutes, Judges are not free to add or delete provisions from plain statutory text. See McLaughlin v. State, 721 So.2d 1170, 1172 (Fla.1998) (when the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning). When engaged outside of the common law, as here, Judges are not meant to be fixers of statutory omissions and have no authority to fill statutory voids or enlarge the domain of statutes already adopted. Holly v. Auld, 450 So.2d 217 (Fla.1984) (courts lack power to construe clear statute to extend, modify, or limit, express terms or reasonable and obvious implications; to do so would be abrogation of legislative power). This means that Judges are not free to reconstruct statutes dealing only with subpoenas and extend them to cover search warrants as well.

The issuance of these search warrants was based on a finding by a Judge that the medical records to be seized were relevant to the commission of a felony being investigated by the State. § 933.02(3), Fla. Stat. (2003) (“Upon proper affidavits being made, a search warrant may be issued ... when any property constitutes evidence relevant [e.s.] to proving that a felony has been committed.... ”)• The State had the burden of satisfying the Judge that there was probable cause that petitioner’s medical records were relevant to the commission of a crime as to which there was also some evidence of his involvement. The State satisfied that burden because the Judge signed the search warrant, and nothing we have been shown suggests any error in that regard.

If these subpoena statutes were nevertheless somehow applicable to search warrants, in one real sense they would be unnecessarily redundant. Except for prior notice, the greater showing required by search warrants — probable cause and relevancy — exceeds that which these subpoena statutes require. If a mere reasonable suspicion is constitutionally sufficient for the State to seize medical records by subpoena, obviously the probable cause necessary for the issuance of a search warrant affords even greater protection. See State v. Rivers, 787 So.2d 952 (Fla. 2d DCA 2001) (constitutional right of privacy in medical records overcome by State’s showing of reasonable suspicion for issuance of investigative subpoena).

Search warrants have generally not required prior notice because of the understandable fear that the property’s custodian might cause the evidence to disappear if he knew the State was seeking to seize it in a criminal investigation. Indeed, in State v. Viatical Services Inc., 741 So.2d 560, 562-3 (Fla. 4th DCA 1999), Judge Warner noted the absence of any authority for an adversary hearing before the issuance of a search warrant and recognized that a criminal investigation might actually be impaired by such a hearing. That is precisely the argument made by the State in this case in using a search warrant rather than an investigative subpoena. Such decisions are well within prosecutorial discretion, and no one here has made a sufficient showing otherwise.

In deciding to employ search warrants, rather than subpoenas, to reach petitioner’s medical records, the State cast a wary eye on our decision in Viatical. There, the State had obtained a search warrant to seize a viatical settlement company’s files in connection with a fraud investigation. Along with business and financial records, the files contained the confidential medical records of persons who were insured by life insurance policies. Counsel for the company under investigation objected to the issuance of a search warrant, asserting the right of privacy in the medical records of the insureds, who were not targets of the investigation. The trial court decided to hold an adversarial hearing prior to issuing the warrant. In granting the State certiorari relief, we held that it was improper to hold an adversarial hearing before the warrant could be issued, saying:

“While we can find no authority for allowing an adversarial hearing prior to the issuance of a search warrant, which hearing may severely compromise a criminal investigation, we dismiss the writ for failure to show irreparable harm. Nevertheless, despite our conclusion that the state has failed to show irreparable harm in this case, holding an adversarial hearing prior to the issuance of a search warrant is contrary to statute. See § 933.07, Fla. Stat. (1997). Pre-seizure hearings are ‘necessarily ex parte, since the subject of the search cannot be tipped off to the application for a warrant lest he destroy or remove evidence.’ ” [e.s., c.o.]

741 So.2d at 562-63.

Although the State read Viatical to support the issuance of warrants for medical records without a pre-seizure hearing, it was apparently concerned about language in Viatical that established certain procedures for protecting the privacy interests in medical records post-seizure. In Viatical, we directed the trial court on remand to “issue the warrant on condition that the insured’s medical records be sealed until a post-seizure hearing may be held on the issue of the right to privacy.” 741 So.2d at 564.

In this case, and in an abundance of caution, the State followed the above procedure described in Viatical. AJter seizing the records, it kept the records sealed, then notified petitioner of the seizure and his opportunity to be heard on the privacy issue before the seized records could be unsealed. Though commendable, these, steps were not required. In Viatical, we stated that when there are privacy rights which merit protection, the court must fashion a remedy to protect them. In that case, however, we were concerned about protecting the privacy rights of innocent third parties. Here, petitioner is the target of the criminal investigation, not a third party not implicated in the crimes under investigation. The Judge who reviewed the warrant application’s supporting affidavits found probable cause to believe that the medical records contained evidence of criminal wrongdoing. In issuing the warrant, the Judge impliedly determined that the privacy rights of petitioner were outweighed by the State’s legitimate need to secure the information in furtherance of its investigation and prosecution of the suspected crimes. Thus, the circuit court was not obligated to do anything further before allowing the State to review the seized records.

Obviously, Viatical does not support a conclusion that the constitutional right of privacy has any limitation on the use of search warrants for medical records. To hold that it does would conflict with the supreme court’s holdings that the right of privacy provision has no application to constitutionally valid search and seizure. To repeat what we have already shown, the supreme court has made clear that' the privacy amendment does not “modify the applicability [e.s.] of article I, section 12.” Hume, 512 So.2d at 188. This means that the applicability of article I, section 12, is not displaced or affected by the privacy amendment. The propriety of a search warrant is measured by the requirements of article I, section 12, not by article I, section 23. The supreme court’s holdings in Hume-Madsen-Hester make clear that the constitutional right of privacy does not further restrict the State’s powers of search and seizure in the criminal context beyond those requirements imposed by article I, section 12, and the Fourth Amendment. We know from the addition of the citrus canker provision to section 933.07(2) that the Legislature is aware of its authority to add burdens in obtaining search warrants. It needs repeating that it simply has not done so for medical records. We therefore cannot agree that article I, section 23, has any affect on the State’s authority over items properly seized by a valid search warrant, or that it requires any further post-seizure hearing as to general relevancy.

Petitioner places heavy reliance on State v. Johnson, 814 So.2d 390 (Fla.2002), to support a privacy limitation on search warrants for medical records. The precise issue the court faced there was whether the exclusionary rule should bar the State from attempting to correct a failure to give prior notice of the issuance of a subpoena to seize medical records. The State did not proceed by search warrant in that case, as it has done here. Indeed, as the court itself explained:

“The issues before us are whether the State can avoid the procedural requirements of section 395.3025(4)(d) by use of its investigative subpoena power, and if not, what sanction is to be imposed when the State does not comply with these procedural requirements. Based on the clear language of the statute, we hold that the state attorney’s subpoena power under section 27.04, Florida Statutes (1997), cannot override the notice requirement of section 395.3025(4)(d).” [e.s.]

814 So.2d at 393. There is not a single word anywhere in the opinion suggesting or implying that the holding also applies to search warrants. To extend this holding on the use of subpoenas to search warrants would be, well, unwarranted.

Petitioner seems to suggest that the issuing Judge’s determination of probable cause, and of the relevancy of his medical records to the crime being investigated, is somehow insufficient. He argues that before any warrant could be issued we should require an adversarial hearing, with prior notice to petitioner. We think the issuing Judge’s determination is all that is required under article I, section 12. Nothing in the constitution or search warrant statutes requires a post-seizure hearing to reconsider the relevancy or probable cause determinations made by the issuing Judge. This would amount to a judicially created limitation on search warrants.

Although we are urged to engage in statutory construction to deduce some unarticulated legislative purpose limiting warrants, the supreme court has made clear that there must be a “hopeless inconsistency” between statutes before the rules of construction — such as in pari materia — may be employed to defeat the plain language of one in favor of the other. State v. Parsons, 569 So.2d 437 (Fla.1990) (“There first must be a hopeless inconsistency between the two statutes before rules of construction are applied to defeat the express language of one of those statutes.”); Starr Tyme Inc. v. Cohen, 659 So.2d 1064 (Fla.1995) (same). In other words, it is improper to resort to the canons of statutory construction when the texts of different statutes are plain and unambiguous. See A.R. Douglass Inc. v. McRainey, 102 Fla. 1141, 1144, 137 So. 157, 159 (Fla.1931) (“The intention and meaning of the Legislature must primarily be determined from the language of the statute itself and not from conjectures ali-unde. When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.”)- This is simply another application of the principle that Judges are not empowered to add or remove words or plain meaning from statutes. Holly v. Auld, 450 So.2d at 219 (not court’s duty or prerogative to modify or shade clearly expressed legislative intent in order to uphold policy favored by the court).

Accordingly, we hold that the constitutional right of privacy in medical records is not implicated by the State’s seizure and review of medical records under a valid search warrant without prior notice or hearing. We therefore deny the writ. Our denial, however, is without prejudice to petitioner to seek review by the issuing Judge to insure that all the records produced fall within the scope of the warrants, and to seek other protective relief to prevent improper disclosures to third parties of records irrelevant to this prosecution.

TAYLOR, J., concurs.

MAY, J., concurs in part and dissents in part with opinion.

MAY, J.,

concurring in part and dissenting in part.

I concur in that part of the majority’s opinion holding the State may use a search warrant to search for and seize a person’s medical records. I dissent from that part of the opinion that turns a blind eye to section 23, article I of the Florida Constitution and the age-old protection afforded those records.

While using eight pages to hold that section 23 provides no protection, the majority ends the opinion with the following: “Our denial, however, is without prejudice to petitioner to seek review by the issuing Judge to insure that all the records produced fall within the scope of the warrants, ... and to seek other protective relief to prevent improper disclosures to third parties of records irrelevant to this prosecution.” Slip Op. at 8. (Footnote omitted.) This is the very review sought by the petitioner in this case, which is why I would grant the petition. The majority holds there is no right to protection of one’s medical records when a search warrant is issued, yet fashions its own form of relief that I find evident in Florida’s Constitution and the statutes designed to protect a person’s medical records.

Unlike the majority, I see a distinction between the right to search and seize medical records, which is controlled by article I, section 12 of the Florida Constitution and “disclosure” of those records, which I believe is controlled by section 23.

With regard to search and seizure, section 933.07(1), Florida Statutes (2003), authorizes the search of property or persons described for the purpose of bringing the property or person(s) before a magistrate or other court. The statute does not distinguish among types of property. There is no special exception for medical records.

When the legislature enacted sections 395.3025 and 456.057, Florida Statutes (2003) to address the “disclosure” of medical records, it neither referenced the warrant statute in them nor amended the warrant statute to reference the medical records statutes.

However, in response to the citrus canker crisis in 2002, the legislature amended the warrant statute to require the court to “conduct a court proceeding prior to the issuance of such search warrant upon reasonable notice” and to “receive, hear, and determine any objections by property owners to the issuance of such search warrant.” See § 933.07(2), Fla. Stat. (2003). No similar requirement was added to the warrant statute with regard to medical records.

Thus, I conclude, as does the majority, that search warrants may be used to search and seize medical records, pursuant to section 12. Indeed, common sense suggests that law enforcement would itself be handcuffed if required to give notice to a person before lawfully “seizing” evidence. However, the warrant statute simply does not address the issue of “disclosure.”

This is the point at which I no longer see “eye to eye” with the majority. The special nature of the doctor-patient relationship dates back 2400 years to the age of Hippocrates. From that point forward, medical records have been the focus of constitutional, statutory, and regulatory protections. See, e.g., Art. I, § 23, Fla. Const. See also §§ 395.3025 and 456.057, Fla. Stat. (2003); Health Insurance Portability and Accountability Act [HIPPA], 42 U.S.C.A. § 210 et seq. (1996); 10 U.S.C.A. § 1102 (2004); 38 U.S.C.A. § 7332 (2004); 42 C.F.R. §§ 405.2138, 405.2139, 417.106, 417.486 (2004); Wanda E. Wakefield, J.D., Annotation, Physician-Patient Privilege as Extending to Patient’s Medical or Hospital Records, 10 A.L.R.4th 552 (1981). Yet, the majority cannot see any constitutional or statutory basis to provide a meaningful post-seizure hearing to insure that only those records “relevant” to the criminal investigation are “disclosed.”

Perhaps the first indication of the privacy interest in medical records is found in the Hippocratic Oath. It provides in part: “What I may see or hear in the course of the treatment or even outside of the treatment in regard to the life of men, which on no account ought to be spread abroad, I ■will keep to myself, holding such things shameful to be spoken about.” See Hippocrates, Physician’s Oath, STEADMAN’S MEDICAL DICTIONARY 579 (22d ed.1972).

Centuries later, the citizens of Florida would amend their constitution to add section 23. It provides for the “right to be let alone and free from governmental intrusion into the person’s private life.... ” Art. I., § 23, Fla. Const. And, while the majority points out that our supreme court has held section 23 does not affect search and seizure under section 12, it seemingly overlooks the court’s recognition that medical records fall within the right to privacy afforded by section 23. State v. Johnson, 814 So.2d 390 (Fla.2002).

Our legislature has consistently protected medical records. Most significantly, sections 395.3025 and 456.057 specifically address the “disclosure” of medical records. The majority suggests these statutes are irrelevant to the issue before the Court because they were only intended to relate to the issuance of subpoenas. Op. at 395.1 disagree.

I know the difference between a subpoena and a warrant. I also recognize the protective mechanism devised by the legislature to prevent unwarranted “disclosure” of medical records. See §§ 395.3025 and 456.057, Fla. Stat. (2003). Our supreme court has clearly indicated the privacy interest in medical records trumps the State’s investigative subpoena powers. Johnson, 814 So.2d 390. In doing so, the Court upheld the privacy interest in a person’s medical records and continued to afford meaning to section 23 of the Florida Constitution in the face of the State’s right to investigate criminal activity. I would do the same here.

Our legislature continued to protect medical records' in legislation to address the over-prescription of drugs by a doctor. Those statutes provide for a warrant to search the doctor’s office, but patient’s medical records are obtainable only by consent or through a subpoena issued pursuant to section 456.057. See §§ 458.341 and 458.343, Fla. Stat. (2003).

Perhaps the most recent reminder of the importance of a person’s privacy interest in medical records can be found in Congress’s amendments to HIPPA. See Health Insurance Portability and Accountability Act [HIPPA], 42 U.S.C.A. § 210 et seq. (1996). The amendments further demonstrate the trend to enhance, not eliminate, the privacy afforded to patients and their medical records.

In State v. Viatical Services, Inc., 741 So.2d 560 (Fla. 4th DCA 1999), this court reviewed the privacy interest in medical records in the context of a search warrant. This court was asked to balance the same competing interests present in this case. We held the trial court “should have limited the seizure by allowing the records to be sealed, rather than precluding seizure of what it found probable cause to believe would contain evidence of criminal wrongdoing.” Id. at 564. We directed the trial court “to issue the warrant on condition that the insured’s medical records be sealed until a post-seizure hearing may be held on the issue of the right of privacy.” Id.

According to the majority, Viatical does not support a conclusion that the constitutional right of privacy has any limitation on the use of search warrants for medical records. Op. at 396.1 agree. What Viatical does support, however, is that medical records are protected. They should be afforded that protection by the process outlined in Viatical. The common thread woven throughout these statutes and the cases interpreting them is the privacy interest in medical records. Medical records fall within a sphere of privacy afforded by section 23. Hunter v. State, 639 So.2d 72 (Fla. 5th DCA 1994) (followed by Ussery v. State, 654 So.2d 561 (Fla. 4th DCA 1995)). Whether they are obtained by means of a subpoena or a warrant, their protected status remains the same.

The simple fact remains — our legislature has mandated greater protection for a person’s medical records than other types of property. That protection is found under the statutory headings of “confidentiality” and “patient’s records.” See §§ 395.3025 and 456.057, Fla. Stat. (2003). I would therefore focus on the confidentiality and privacy interests in these medical records statutes rather than the subpoena process they employ.

Our task should be to construe and harmonize competing statutory provisions. Mann v. Goodyear Tire & Rubber Co., 300 So.2d 666 (Fla.1974); Wilensky v. Fields, 267 So.2d 1 (Fla.1972); see also First Mortg. Corp. of Vero Beach v. Stellmon, 170 So.2d 302 (Fla. 2d DCA 1964) (statutes should be construed so that all parts are meaningful). We should not ignore one provision simply to enforce the other. Howarth v. City of DeLand, 117 Fla. 692, 168 So. 294, 298 (1934).

Recognizing the right to privacy in medical records and ensuring only those relevant to the crime under investigation are “disclosed” in the least intrusive manner does not engraft a restriction on the State’s power of search and seizure. For if not the court system, who will give meaning to section 23? See John Sanchez, Constitutional Privacy in Florida: Between the Idea and the Reality Falls the Shadow, 18 NOVA L. REV. 775 (1994).

Warrants are a means by which the State may “search” and “seize” relevant evidence when probable cause exists to believe that a crime has been committed. They were not designed to set the parameters of “disclosure” of items otherwise protected by our constitution. A magistrate’s determination of what might appear relevant at the time a warrant is issued is simply insufficient to protect an individual’s right to privacy in their medical records. Only when the records have actually been seized can a full, fair, and specific determination of relevancy be made.

In this case, the warrant requested “medical records,” not medical records related to prescriptions. The medical providers, professionals in medicine, are but lay persons in the law. They bundled up all of the medical records, even those irrelevant to the crime under investigation, as the majority acknowledges, and turned them over to the State. If we simply deny the writ, there is no protection afforded the petitioner. Once disclosed, the petitioner’s privacy interest in his medical records is forever lost. While there is value in a post-seizure hearing, there is no value in a post-“disclosure” hearing.

In my view, the hearing afforded the petitioner did not allow the parties to address significant issues before “disclosure” was ordered. This is due in part to the initial positions taken by the parties, each asserting the dominance of either the medical records or warrant statute. They were unable to reach the real issue — “disclosure.” A meaningful hearing on the issue of “disclosure” should include an in camera review of the records seized to determine their relevance and a determination as to whom the relevant records can be disclosed.

I dissent therefore from the majority’s decision to keep its “Eyes Wide Shut” to the right to privacy in a person’s medical records. I would grant the petition, issue the writ, quash the order of disclosure, and remand the case to the trial court to determine the relevancy of the records seized and to whom, if anyone, those records may be “disclosed.” The doctor shopping statute speaks in terms of a patient’s obligation to inform his doctors as to whether “controlled substances or a prescription for a controlled substance of like therapeutic use from another practitioner” has occurred within the previous 30 days. See § 893.13(7)(a)(8), Fla. Stat. (2003). Thus, the details of petitioner’s medical condition and treatment unrelated to information concerning disclosure of other prescriptions are not relevant and should not be disclosed.

On Motion for Rehearing, Motion for Rehearing En Banc, and Certification

PER CURIAM.

We deny all rehearing but certify the following question to the Supreme Court:

Do §§ 395.3025(4) and 456.057(5)(a) bar the State from obtaining a search warrant to seize and inspect a patient’s medical records without providing the patient notice and a prior hearing to oppose the seizure and inspection?

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

      . See § 893.13(7)(a)8, Fla. Stat. (2003) ("It is unlawful for any person ... [t]o withhold information from a practitioner from whom the person seeks to obtain a controlled substance or a prescription for a controlled substance that the person making the request has received a controlled substance or a prescription for a controlled substance of like therapeutic use from another practitioner within the previous 30 days.” [e.s.]).

      . Cf. John Sanchez, Constitutional Privacy in Florida: Between the Idea and the Reality Falls the Shadow, 18 Nova L.Rev. 775 (1994) (arguing that Florida courts have given article I, section 23, only grudging effect); Rasmussen v. S. Fla. Blood Serv. Inc., 500 So.2d 533 (Fla.1987) (privacy interests of blood donors defeated AIDS victim’s claim to subpoena names and addresses of blood donors who may have contributed the tainted blood); Atwell v. Sacred Heart Hosp., 520 So.2d 30 (Fla.1988) (natural child who was not formally adopted by family that raised him entitled to access to hospital record of his birth even though name of birth mother therein revealed).

      . See U.S. Const., Amend, iv (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”); Katz v. United States, 389 U.S. 347, 350-51, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (”[T]he Fourth Amendment cannot be translated into a general constitutional 'right to privacy.’ That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. Other provisions of the Constitution protect personal privacy from other forms of governmental invasion. But the protection of a person’s general right to privacy — his right to be let alone by other people — is, like the protection of his property and of his very life, left largely to the law of the individual States.”).

      . In re T.W., 551 So.2d 1186, 1191-92 (Fla.1989) ("Since the people of this state exercised their prerogative and enacted an amendment to the Florida Constitution which expressly and succinctly provides for a strong right of privacy not found in the United States Constitution, it can only be concluded that the right is much broader in scope than that of the Federal Constitution.”).

      . See Art. I, § 12, Fla. Const. (1982) (adding the following: "This right shall be construed in conformity with the 4th Amendment to 'the United States Constitution, as interpreted by the United States Supreme Court.”).

      . See House Joint Resolution No. 31-H (June 24, 1982).

      . See § 395.3025(4)(d), Fla. Stat. (2003) ("Patient records are confidential and must not be disclosed without the consent of the person to whom they pertain, but appropriate disclosure may be made without such consent to ... [i]n any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice by the party seeking such records to the patient or his or her legal representative.”); § 456.057(5)(a)3, Fla. Stat. (2003) (“Except as otherwise provided in this section and in s. 440.13(4)(c), such records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient or the patient's legal representative or other health care practitioners and providers involved in the care or treatment of the patient, except upon written authorization of the patient. However, such records may be furnished without written authorization ... [i]n any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient's legal representative by the party seeking such records.”), [hereinafter referred to as subpoena statutes]

      . And so, when we refer to the medical records subpoena statutes, or just the subpoena statutes, we refer only to the subdivisions dealing with subpoenas of medical records.

      . See § 933.07(1), Fla. Stat. (2003) (providing for issuance of search warrants); § 933.02(3), Fla. Stat. (2003) (“Upon proper affidavits being made, a search warrant may be issued ... when any property [e.s.] constitutes evidence relevant to proving that a felony has been committed....”).

        .See also State v. Tsavaris, 394 So.2d 418, 426 (Fla.1981)(distinguishing between search warrants and subpoenas and holding that requirements of Fourth Amendment apply to subpoenas in criminal case only to ensure that breadth of subpoena is reasonable).

      . See § 933.14(1), Fla. Stat. (2003) (issuing Judge may order property seized by warrant returned where the property delivered up is "not the same as that described in the warrant”).

      . The majority acknowledges that these statutes were enacted subsequent to the constitutional amendment to section 12. I take this as an indication that the legislature still holds medical records in a privileged category of their own.

      . The majority also distinguishes Viatical by suggesting it dealt with innocent third parties as opposed to the innocent (until proven guilty) first party involved in this case. Op. at 396. In my view, that is a distinction without a difference as relates to a person’s right to privacy under section 23.

      .As Justice Arthur Goldberg once wrote while discussing the right to privacy under the U.S. Constitution, “the right of privacy is a fundamental personal right, emanating ‘from the totality of the constitutional scheme under which we live.’ ” Griswold v. Connecticut, 381 U.S. 479, 494, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring (quoting Poe v. Ullman, 367 U.S. 497, 521, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961))).

      . I find the majority's reliance on State v. Hume, 512 So.2d 185 (Fla.1987), Madsen v. State, 521 So.2d 110 (Fla.1988), and State v. Hester, 618 So.2d 1365 (Fla.1993), to avoid the import of section 23, to be misplaced. Each of those cases dealt with whether the State had properly seized evidence. Not one of them dealt with the "disclosure” of otherwise privileged medical records.

      . It would also seem advisable that when medical records are the subject of a search warrant, it would be a better practice for the State to keep the warrant and the accompanying affidavit under seal until an impartial magistrate is able to determine relevancy. Only in this manner can the underlying philosophy of section 23 be guaranteed.


author: WALLACE, Judge.

text:
    Madison MAYS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4475.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 2004.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

We affirm the final judgment withholding adjudication and placing Madison Mays on probation for possession of cocaine. We write to certify conflict with the decision of our sister court in Baez v. State, 814 So.2d 1149 (Fla. 4th DCA 2002).

At approximately 2:17 a.m. on April 19, 2003, Mays was walking southbound on a public street when a deputy in a police cruiser drove past him and pulled off to the side of the road without blocking his path. The deputy exited his cruiser, asked Mays how he was doing, and requested identification. Mays produced his driver’s license, and the deputy retained the license while he ran a warrants check. When the warrants check revealed an outstanding warrant, the deputy arrested Mays and, pursuant to a search incident to the arrest, discovered cocaine on his person.

Mays entered a no contest plea to possession of cocaine while reserving the right to appeal the denial of his dispositive motion to suppress the cocaine. The trial court withheld adjudication and placed Mays on probation for eighteen months.

The issue reserved for appeal is whether the deputy’s retention of Mays’ driver’s license in order to investigate further by running a check for outstanding warrants constituted an illegal detention that rendered unlawful the search subsequent to Mays’ arrest. There is a distinction between an encounter that constitutes a seizure or stop of a person and a consensual encounter that does not intrude on any constitutionally protected interest. Popple v. State, 626 So.2d 185, 186 (Fla.1993). If the encounter constitutes a stop, then the police must have a reasonable suspicion of criminal activity for the encounter to be legal. Lightbourne v. State, 438 So.2d 380, 387 (Fla.1983) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). However, a consensual encounter is per se legal.

“An officer may address questions to anyone on the street, and unless the officer attempts to prevent the citizen from exercising his right to walk away, such questioning will usually constitute a consensual encounter rather than a stop.” State v. Mitchell, 638 So.2d 1015, 1016 (Fla. 2d DCA 1994) (citing State v. Starke, 574 So.2d 1214 (Fla. 2d DCA 1991), State v. Wilson, 566 So.2d 585 (Fla. 2d DCA 1990), and State v. Simons, 549 So.2d 785 (Fla. 2d DCA 1989)). In this case, the deputy did not block Mays’ path, but he parked his vehicle on the side of the road. The deputy then casually asked Mays how he was doing and requested identification. These actions do not constitute a stop, but reflect the initiation of a consensual encounter.

Although the legality of the initial encounter is clear, there is some dispute among our sister courts regarding whether, under these circumstances, the consensual encounter was transformed into an illegal stop prior to Mays’ arrest and search incident to arrest. This court has repeatedly held that an encounter in which a police officer briefly retains a driver’s license in order to run a warrants check constitutes a consensual encounter as opposed to a stop. See Watts v. State, 788 So.2d 1040 (Fla. 2d DCA 2001) (en banc); Mitchell, 638 So.2d 1015; McLane v. Rose, 537 So.2d 652 (Fla. 2d DCA 1989). However, in Baez, 814 So.2d 1149, the Fourth District has come to a contrary conclusion. See also Perko v. State, 874 So.2d 666 (Fla. 4th DCA 2004).

In Baez, a police officer approached a defendant who was sleeping in the front seat of a van parked in an industrial area. 814 So.2d at 1150. The officer tapped on the van’s window and, when the defendant responded, asked to see identification. The defendant exited the van and provided the officer with his driver’s license. The officer then used the driver’s license to run a warrants check, which revealed an outstanding arrest warrant. The officer arrested the defendant pursuant to the warrant, and a search of the defendant’s van incident to arrest revealed cocaine.

The Fourth District held that the encounter was consensual until the police officer retained the defendant’s driver’s license in order to ran the warrants check. Id. at 1152-53. The court concluded that a reasonable person would not have felt free to leave under the circumstances. Id. at 1153. Therefore, the consensual encounter was transformed into a stop; the stop was illegal because the police officer did not have a reasonable suspicion of criminal activity to support it.

Since Baez was issued, the Fifth District has expressly disagreed with the Fourth District on the issue. See Smalls v. State, 858 So.2d 1244 (Fla. 5th DCA 2003); Golphin v. State, 838 So.2d 705 (Fla. 5th DCA 2003). The Fifth District concluded that “when a citizen voluntarily relinquishes possession of his property to police, reasonably implicit in such consent is that the police will retain the property for the period of time reasonably needed to accomplish the police purpose or until the consent is withdrawn, whichever first occurs.” Golphin, 838 So.2d at 707. As noted above, Baez is currently on review before the supreme court. State v. Baez, 835 So.2d 269 (Fla.2002).

We are compelled to uphold the denial of the motion to suppress because the entire encounter was a valid consensual encounter under Watts, Mitchell, and McLane. However, if the supreme court approves Baez, then the consensual encounter in this case could be viewed as one that was transformed into a stop that was illegal because it was done without a reasonable suspicion of criminal activity. Despite the existence of a valid warrant for Mays’ arrest, Mays would then be entitled to the suppression of the cocaine because it was discovered as the result of an illegal encounter. See Rollins v. State, 578 So.2d 850, 851 (Fla. 2d DCA 1991); Libby v. State, 561 So.2d 1253 (Fla. 2d DCA 1990); Frierson v. State, 851 So.2d 293, 300 (Fla. 4th DCA 2003); but see State v. Foust, 262 So.2d 686 (Fla. 3d DCA 1972).

Based on our conclusion that the trial court properly denied the motion to suppress, we affirm the final judgment withholding adjudication and placing Mays on probation for possession of cocaine. We certify conflict with Baez.

Affirmed; conflict certified.

ALTENBERND, C.J., and KELLY, J„ Concur.

      . We recognize that Mays provided contradictory testimony, but we are required to interpret the evidence and the inferences and deductions that flow from it in the light most favorable to sustaining the court's ruling. See San Martin v. State, 717 So.2d 462, 469 (Fla.1998).

      . We note that there are instances when a police officer may transform a consensual encounter into a stop by retaining a driver’s license in order to unreasonably delay the encounter, but a brief detention that ends when the warrants check is complete is not per se unreasonable.

      . A conflict on the issue of whether evidence seized incident to an arrest on a valid warrant must be suppressed if the warrant was discovered during an illegal police encounter is currently on review before the supreme court. State v. Frierson, 870 So.2d 823 (Fla.2004). The resolution of this conflict may also impact the disposition of Mays' case.


author: FARMER, C.J.

text:
    Linda MARX, Personal Representative of the Estate of John D. Cole, III, Appellant, v. CLEAR CHANNEL BROADCASTING, INC., d/b/a WJNO Radio, Appellee.
    No. 4D03-2221.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 2004.
    Rehearing Denied Dec. 8, 2004.
    Jack Scarola of Searcy, Denney, Scarola, Barnhart & Shipley, P.A., West Palm Beach, for appellant.
    Hank Jackson and Joseph J. Ward of Holland & Knight, LLP., West Palm Beach, for appellee.
   FARMER, C.J.

This case involves rights and liabilities under an employment contract between a prominent radio personality (Cole) and the corporation then owning the Station (Fairbanks). The agreement barred Cole from competing against the Station for a stated period after employment ended. The agreement also had a clause saying that the rights and liabilities of the parties were not assignable. Fairbanks later sold the Station to another corporation (Clear Channel), which soon terminated Cole’s employment. He then sued Clear Channel and alleged that it had unjustifiably interfered with his prospective, advantage to work for a different radio station in the community. The trial judge granted a summary judgment, holding that the non-assignability clause was ambiguous and that the non-competition clause justified the employer’s interference as a matter of law. Because we do not agree with the legal conclusion that the non-assignability clause is ambiguous, we reverse.

The 1995 agreement was for an initial term of three years, with a provision for annual renewals thereafter. It was in its third annual renewal when Fairbanks sold the Station to Clear Channel. The contract provision as to assignment of contractual rights and obligations stated:

“The provisions of this agreement shall be binding upon and inure to the benefit of the parties hereto, COLE’s heirs and personal representatives, and the successors and assigns of [Fairbanks]. The foregoing notwithstanding, however, upon the sale of all or substantially all the assets, business and goodwill of [Fairbanks], or upon the merger or. consolidation of the [Fairbanks] with another corporation, the Agreement shall bind and inure to the benefit of COLE. No party, however, may assign its rights or obligations under this Agreement.” [e.s.]

Although the first sentence by itself might seem to make some rights under the non-competition clause transferable, the second sentence seems to contradict that interpretation, and the third sentence clearly goes entirely in another direction. In context it is difficult to imagine how the third sentence would have any meaning at all unless it were to categorically eliminate the non-competition clause if the station was sold.

Contractual language must be read to have the plain meaning of the words used. See Gendzier v. Bielecki, 97 So.2d 604, 608 (Fla.1957) (the test of the meaning and intention of the parties is the content of the written document); Estate of Barry, 689 So.2d 1186, 1187 (Fla. 4th DCA 1997) (when terms of agreement are unambiguous, meaning and intent of makers are discerned solely from face of agreement; language used and its plain meaning controls). The general rule as to interpretation of non-competition agreements is that such contracts will not be construed to extend beyond their proper import or further than language of the contract absolutely requires. Zimmer v. Pony Exp. Courier Corp. of Fla., 408 So.2d 595, 597 (Fla. 2d DCA 1981), review denied, 418 So.2d 1280 (Fla.1982).

The introductory adverbial phrase in the second sentence (“the foregoing notwithstanding however”) and the use of the qualifying adverb however in the third sentence of the non-assignability provision have the effect of requiring that the three sentences be read sequentially, rather than all at once together. That is, one starts with the first sentence and learns that the agreement binds the heirs and successors of both parties. But the- second sentence begins by displacing the first sentence of some effect (“The foregoing notwithstanding however”), referring uniquely to Cole, providing that only he benefits if there is a sale of the station but that he is bound by the agreement. The third sentence then provides rather clearly that no rights under the contract may be assigned.

Looking backward from the third sentence, and giving the text of the full paragraph its due, reading the three sentences sequentially — as they obviously were intended to be — giving the words their plain meaning, the parties obviously meant that no executory benefit under the agreement may be assigned and that only the original parties may enforce any vested benefits due under the agreement. By omitting the seller (and thus, also, the seller’s buyer) in explicit benefit in the event of a sale, this second sentence provides that Fairbanks does not continue to benefit from it if the Station is sold to new owners. The third sentence provides categorically that neither one of the parties may transfer contractual rights or delegate contractual duties.

And so the heirs and successors of Cole may enforce only rights arising from performance previously completed and thus entirely vested. That would mean, for example, that Cole’s heirs could enforce his right to unpaid salary, or for damages if he had been fired without good cause or for invidious reasons. But the third sentence makes clear that if Fairbanks sells the station to new owners the non-competition clause is personal between Fairbanks and Cole and may not be assigned as part of the sale.

Armed with this understanding of the non-assignability clause, we now determine whether the summary judgment in favor of Clear Channel in Cole’s interference with prospective advantage lawsuit may stand up. The issue turns on whether Clear Channel can rely on the contract to show that it acted in good faith.

The new owner rests its assertion of good faith on its lawyer’s advice that the non-assignability clause is ambiguous. Clear Channel contends that it can justify interfering with Cole’s right to employment by a good faith belief that the contract did not mean what it said. But to do so, Clear Channel would have to reject the plain meaning of the non-assignability clause in the employment agreement. As a general proposition we do not think one may base a defense of good faith to a claim of interfering with prospective advantage on such a circumstance.

The subject of the contractual provision is competition. At one time, both the common and statutory law had a strong preference in favor of competition and against all agreements restraining it. See Love v. Miami Laundry Co., 118 Fla. 137, 160 So. 32 (1935) (saying that courts are reluctant to uphold contract whereby individual restricts his right to earn living at his chosen calling); Dunkin v. Barkus & Kronstadt, D.O.’s P.A., 533 So.2d 877 (Fla. 3d DCA 1988) (non-compete contracts and the statute which permits them are in derogation of the common law rule precluding agreements in restraint of trade, any such agreement must be construed strictly against the purported restraint); Frumkes v. Beasley-Reed Broad, of Miami, Inc., 533 So.2d 942 (Fla. 3d DCA 1988) (same).

In the early 1950s the Legislature first adopted statutory authority for the enforcement of non-competition covenants in employment agreements. See Ch. 28048, Laws of Fla. (1953). This legislation allowed employers and employees to enter into non-competition agreements so long as the contracting employer continues in business and the agreement is reasonable as to time and area. § 542.33(2)(a) (“one who is employed ... may agree with ... his employer to refrain from carrying on or engaging in a similar business ... within a reasonably limited time and area, so long as ... such employer continues to carry on a like business therein.”). As the statute made clear, it is only the original employer who could benefit from the non-competition agreement and then only so long as that employer stays in the same business in the same area. § 542.33(2)(a) (“so long as ... such employer continues to carry on a like business therein”).

In 1996, the legislature significantly rewrote the statute, adopting a new provision. See Ch. 96-257, §§ 1, 3, Laws of Fla., and § 542.335, Fla. Stat. (2003). At the same time, it repealed the old section 542.33 as to non-competition agreements made after July 1, 1996, but provided that old section 542.33 would continue to govern agreements, like the present one, made before that date. It is important to note that the new statute allows the enforcement of non-competition clauses by successors or assignees where the contract does “expressly authorize[] enforcement by a party’s assignee or successor.” § 542.335(f)2, Fla. Stat. (2003). This departs from the original legislation, which limited the enforcement of non-competition agreements to the original employer staying in the same business and area. Under the new provision, non-competition agreements can be enforced by assignees, but only if the agreement expressly so provides. Here, the contract does not so provide. Thus under either statute the non-competition clause in this case is not enforceable by the assignee.

Given the nature of the public policy regarding non-competition provisions in employment agreements under section 542.33, it is not possible for a successor owner of the Station — and especially one who received no assignment of the original corporation’s rights under the non-competition agreement — to have good faith in using the clause to interfere with Cole’s right to find employment with another radio station in the same market. To hold otherwise is to invite conduct impairing competition authorized by no enforceable contract simply by ignoring the meaning of both the contract and the governing law. As we said, the basic policy is still in favor of competition, to enforce anti-competitive agreements only where the statutes specifically so authorize. As we have seen, the contract in question does not permit an assignment of the non-competition clause, and therefore the law precludes any attempt on the part of the successor to enforce it.

REVERSED.

POLEN and MAY, JJ., concur.

      . See American Heritage Dictionary 877-78 (3rd ed.) (“however adv. ... 4. In spite of that; nevertheless; yet ... 5. On the other hand; by contrast ...”).


author: THOMPSON, J.

text:
    Levory William HICKMON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D04-1954.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 2004.
    Levory W. Hickmon, Bushnell pro se.
    No Appearance for Respondent.
   THOMPSON, J.

For the tenth time in a very short time, petitioner, Levory William Hickmon, is attempting to attack his conviction and/or sentence for possession of cocaine in Seminole County Circuit Court Case No. 01-574^CFB. Also, Hickmon has repeatedly attacked his convictions and/or sentences in his other Seminole County Circuit Court cases despite already serving those sentences. Hickmon is scheduled to be released in his current case in less than a year.

Hickmon was ordered to show cause why he should not be denied further access to this court pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999). We find his response unconvincing. Hickmon’s current petition lacks merit and represents an effort to circumvent the limitations placed on successive post conviction attacks of criminal convictions by the Criminal Appeal Reform Act of 1996 and Florida Rule of Criminal Procedure 3.850. Furthermore, meritless and successive claims are time consuming and impede the efficiency of the court. See Gaffney v. State, 878 So.2d 470 (Fla. 5th DCA 2004); Donovan v. State, 868 So.2d 667 (Fla. 5th DCA 2004).

It is therefore ordered that Hickmon is precluded from filing any additional pro se appeals, pleadings, motions, or petitions pertaining to his convictions and sentences in Seminole County Circuit Court Case No. 01-574-CFB, and his other Seminole County Circuit Court convictions and sentences already served unless reviewed and filed by an attorney licensed to practice law in the State of Florida.

The Clerk of the Court of the Fifth District Court of Appeal is directed not to accept from Hickmon, as petitioner or appellant, any further pro se pleadings or filings which relate to these cases unless reviewed and signed by an attorney licensed to practice law in the State of Florida. See Jackson v. Florida Dep’t of Corrections, 790 So.2d 398 (Fla.2001); Vickson v. Singletary, 734 So.2d 376 (Fla.1999); Isley v. State, 652 So.2d 409 (Fla. 5th DCA 1995).

PETITION DENIED.

PETERSON and PLEUS, JJ„ concur.


text:
    King David SNELL, Individually and as Personal Representative of the Estate of Debra Ann Snell, Deceased, Appellant, v. Karl S. FRANZ, M.D. and Jackson Hospital, Appellees.
    No. 1D03-3622.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2004.
    Rehearing Denied Nov. 18, 2004.
    John Booth of Michles & Booth, P.A., Pensacola, for Appellant.
    Esther E. Galicia of George, Hartz, Lun-deen, Fulmer, Johnstone, King & Stevens, Ft. Lauderdale, for Karl S. Franz, M.D.
    Matthew P. Bartolomei and Grant A. Kuvin of Hill, Adams, Hall & Schieffelin, P.A., Winter Park for Jackson Hospital.
   PER CURIAM.

The appellant challenges the trial court’s dismissal with prejudice of his four-count civil complaint. Counts I and II contained claims of medical malpractice, but Counts III and IV were founded on other theories. Nevertheless, all counts of the complaint were dismissed pursuant to section 766.206, Florida Statutes. Because the appellant failed to state a cause of action for medical malpractice, the court properly dismissed Counts I and II with prejudice. But the court erred in dismissing the remaining counts with prejudice for failure to comply with chapter 766, Florida Statutes, because chapter 766 had no application to the claims alleged under those counts. Accordingly, the order under review is affirmed as to Counts I and II, reversed as to Counts III and IV, and the ease is remanded.

ALLEN, VAN NORTWICK and BROWNING, JJ., concur.


text:
    Timothy E. WHITE, Petitioner, v. James CROSBY, Jr., Secretary, Florida Department of Corrections, Respondent.
    No. 1D04-3128.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2004.
    Rehearing Denied Dec. 8, 2004.
    Timothy E. White, pro se, petitioner.
    No appearance for respondent.
   PER CURIAM.

DENIED. See Brown v. Campion, 757 So.2d 535 (Fla. 1st DCA 2000).

WOLF, C.J., BARFIELD and WEBSTER, JJ., concur.


text:
    R.W.T., a child, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-3908.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2004.
    R.W.T., Petitioner, pro se.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

ERVIN, BOOTH and KAHN, JJ., concur.


text:
    Wendy Lynne DUNN, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2825.
    District Court of Appeal of Florida, Second District.
    Oct. 20, 2004.

      James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Scavino Sieg, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Wendy Dunn appeals a judgment for trafficking in amphetamine and possession of cannabis. Ms. Dunn entered a negotiated plea of guilty to the charges in exchange for a sentence of 70.8 months’ imprisonment, the minimum sentence required under the sentencing guidelines. Because Ms. Dunn entered a negotiated plea to these charges without reserving the right to appeal any issues, because she received legal sentences based on the charges, and because she has not sought to withdraw her plea, Ms. Dunn’s appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that counsel cannot find a meritorious argument to support the reversal of the judgment or sentences. After a thorough review of the record, we agree.

Prior to entering her plea, Ms. Dunn filed a motion to suppress the amphetamine and cannabis that formed the basis for these charges. Ms. Dunn attached to the motion the deposition transcripts of the law enforcement officers involved in the search and seizure that produced these items. The trial court’s “docket inquiry” suggests that Ms. Dunn’s motion to suppress this evidence was either stricken or withdrawn at a hearing on March 6, 2003. We note that this court has been unable to obtain a transcript of that hearing. This court’s record, however, does include transcripts of both the plea hearing and the sentencing hearing. We conclude that any error that might theoretically have occurred at a hearing on March 6, 2003, is not preserved for this court’s review. See § 924.051(4), Fla. Stat. (2003); Fla. R.App. P. 9.140(b)(2)(A).

Affirmed.

ALTENBERND, C.J, and WHATLEY and CANADY, JJ., Concur.


author: SILBERMAN, Judge.

text:
    R.C.M., Appellant, v. STATE of Florida, Appellee.
    No. 2D04-645.
    District Court of Appeal of Florida, Second District.
    Oct. 20, 2004.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Y. Blanco, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

R.C.M. appeals an order withholding adjudication and imposing probation following his no contest plea to possession of marijuana. He argues that his disposition order is illegal because his probationary term exceeds the maximum sentence that could lawfully be imposed.

We affirm because R.C.M. failed to preserve this issue for appeal. See Fla. R. Juv. P. 8.135; Brannon v. State, 850 So.2d 452, 456 (Fla.2003) (noting that even fundamental sentencing error cannot be raised on appeal without first being preserved by objection or motion to correct sentence); D.M.W. v. State, 823 So.2d 139, 140 (Fla. 2d DCA 2002) (reiterating that preservation of error is required in juvenile proceedings); I.B. v. State, 816 So.2d 230, 231 (Fla. 5th DCA 2002) (emphasizing that errors in juvenile disposition orders, including fundamental errors, must be properly preserved and corrected in accordance with rule 8.135). Our affirmance is without prejudice to R.C.M. filing a motion to correct disposition order pursuant to Florida Rule of Juvenile Procedure 8.135(a).

Affirmed.

NORTHCUTT and VILLANTI, JJ., Concur.


author: WARNER, J.

text:
    Michael H. OESTERLE, individually, Appellant, v. Joseph D. FARISH, Jr., Appellee.
    No. 4D03-3575.
    District Court of Appeal of Florida, Fourth District.
    Oct. 20, 2004.
    Rehearing Denied Dee. 22, 2004.

      Elliot H. Scherker, David A. Coulson and Julissa Rodriguez of Greenberg Trau-rig, P.A., Miami, for appellant.
    Louis L. Williams of Williams and Hef-fling, and Dirán V. Seropian and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, for appellee.
   WARNER, J.

Appellant, Michael Oesterle, appeals the trial court’s order denying his motion to dismiss for lack of personal jurisdiction a complaint alleging fraud and breach of a personal guarantee agreement. He claims that he is protected by the corporate shield doctrine. The trial court determined that Oesterle made essentially false representations as to his intentions to complete the transaction in negotiating a contract for sale of a business in Florida. We conclude that there was sufficient evidence of an intentional tort by Oesterle directed at the Florida plaintiff to warrant the assertion of jurisdiction.

Oesterle, a Michigan resident, was the managing agent of SBG, a Delaware limited liability company. SBG entered into an agreement with GEM Broadcasting to purchase its assets, including radio transmission towers and radio station licenses. As part of the agreement, SBG also agreed to assume the lease of a twenty-two seat skybox at Pro Player Stadium held by Joseph Farish, GEM’s owner. However, it also agreed that seven seats would continue to be reserved for Farish’s use.

Complications arose in the closing of the agreement when SBG refused to close. Farish demanded that Oesterle personally appear in Florida to resolve the differences, and Oesterle agreed to a meeting. At the meeting, according to Farish, Oest-erle agreed to see to it personally that SBG would fulfill its agreement to accept assignment of the skybox lease, and he personally guaranteed that a food and beverage budget of $750 would be provided per game. Unbeknownst to Farish, SBG had already arranged to sell off all of GEM’s assets, except the skybox lease, to other corporations at a substantial profit. Those sales occurred the same day as the closing of the entire transaction. SBG did not accept assignment of the skybox lease. Instead, six days after closing it sued GEM for breach of warranty as to the condition of the radio towers. When SBG failed to perform with regard to the sky-box, Farish sued both SBG and Oesterle, personally.

The complaint set forth causes of action for breach of contract and fraud. As to the breach of contract count, Farish alleged Oesterle agreed to personally see to it, as leader of SBG, that the skybox lease would be assumed. Farish further alleged that Oesterle personally guaranteed that $750 would be allocated per game for refreshments. In the fraud count, Farish alleged that at the time Oesterle guaranteed the contract he never intended to perform it and, thus, misrepresented a material fact on which Farish relied to his detriment in closing on the. transaction.

Oesterle moved to dismiss for lack of personal jurisdiction, alleging that he is protected by the corporate shield doctrine as all of his activities were for the benefit of the corporation and not for himself personally.

The court held a hearing at which both sides presented evidence. Oesterle denied personally guaranteeing the transaction, insisting that at all times he acted for the corporation. After the closing of the transaction, he signed a letter agreeing that the buyer (SBG) would assume the skybox lease with Farish retaining certain privileges as set forth in the contract, and there would be a $750 budget for food and beverages for each game.

Farish testified that Oesterle had personally promised to see to it that the lease was assigned to SBG. At the last meeting between Farish and Oesterle, Farish told Oesterle that he wanted Oesterle “to guarantee himself personally that he was going to see that these things were accomplished.” Oesterle told him, “I will personally see that it will be done.”

The trial court believed that Oesterle made personal representations regarding the skybox lease. Further, the court found Oesterle had a personal financial interest in seeing the transaction completed because his family trust stood'to gain by the sale. The court denied the motion to dismiss, concluding:

The greater weight of the evidence supports Farish’s view that Oesterle individually made certain representations concerning the lease: Farish had previously warned Oesterle not to bait litigation; Oesterle chose to write the March 24, 2000 letter in ostensibly his personal capacity; Oesterle knew SBG intended to sue GEM prior to the April 7, 2000 closing; Oesterle individually nonetheless signed a letter to Farish concerning the skybox lease; Oesterle knew that SBG had contracts to sell all other assets purchased, leaving only the sky box lease; and Oesterle had a financial interest in the out-come: a trust for the benefit of Oesterle’s family stood to gain if the sale went forward. Oesterle intended to offer, and for Farish to rely on, his personal representations concerning the skybox lease. While the substance and concomitant legal effect of those representations may be subject to dispute, there is nothing unfair about requiring Oesterle to defend the implications of those statements in Florida— where the statements were made, where Oesterle voluntarily stepped outside his corporate role and placed his personal integrity on the line, and where the property involved is located.

Florida’s long-arm statute, section 48.193, Florida Statutes (2001), states in pertinent part:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself ... to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
(b) Committing a tortious act within this state.

- A trial court’s ruling on a motion to dismiss for lack of personal jurisdiction is reviewed de novo. Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla.2002) (citations omitted). There is a “two-step inquiry for determining whether long-arm jurisdiction over a nonresident defendant in a given case is proper: First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the [long-arm] statute; and if it does, the next inquiry is whether sufficient ‘minimum contacts’ are demonstrated to satisfy due process requirements.” Id. at 1257 (citing Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989)).

Oesterle contends that he is not subject to Florida jurisdiction because he is protected by the corporate shield doctrine. The corporate shield doctrine protects corporate agents from being subjected to Florida jurisdiction for acts performed while conducting business in Florida on behalf of a corporation. Doe v. Thompson, 620 So.2d 1004, 1006 (Fla. 1993). However, “[a] corporate officer committing fraud or other intentional misconduct can be subject to personal jurisdiction.” Id. at n. 1; see also Office of Atty. Gen., Dep’t of Legal Affairs v. Wyndham Int’l, Inc., 869 So.2d 592, 598-600 (Fla. 1st DCA 2004) (holding vice-president of corporation who developed and implemented unfair and deceptive corporate practice aimed at Florida residents was not protected by corporate shield doctrine for intentional tortious conduct); Allerton v. Dep’t of Ins., 635 So.2d 36, 39 (Fla. 1st DCA 1994) (holding corporate employee who engaged in acts intended to defraud a Florida life insurance company was not protected by corporate shield doctrine from personal jurisdiction in Florida).

Farish alleged and provided evidence that Oesterle made false representations that he would personally see to it that SBG would assume the skybox lease. This assurance was necessary for Farish to close the transaction. The evidence was susceptible to an interpretation that Oesterle made the representation knowing that it was false and that the company had no intention of performing. For one thing, SBG had already agreed to sell GEM’s other Florida assets to different companies, thus eliminating the need for the skybox lease as it was to be the only asset remaining in Florida. Further, Oesterle had a motive to see that the transaction closed because his family would benefit from the sale.

Because the complaint alleges, and the evidence supports, that Oesterle committed an intentional tort in Florida against a Florida resident, both the statutory predicate and due process are satisfied. We therefore affirm the order of the trial court.

SHAHOOD, J„ and GATES, MICHAEL L., Associate Judge, concur.


text:
    Kenneth Ray GOAD, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-5352.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 2004.
    Rehearing Denied Dec. 6, 2004.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

Kenneth Ray Goad appeals his judgment and sentence for burglary of a dwelling and petit theft. We reverse the theft conviction and affirm the burglary conviction.

The State charged Goad with the theft of Santiago Carballo’s lawn mower and the burglary of Carballo’s dwelling. During trial, Goad argued motions for judgment of acquittal on the charges. As to the theft, he asserted that the State failed to prove a link between the lawn mower he took and Carballo’s lawn mower.

To prove the theft charge under section 812.014, Florida Statutes (2003), the State was required to prove that Goad knowingly obtained or used, or endeavored to obtain or use, the property of Santiago Carballo. In Rossi v. State, 717 So.2d 611, 611 (Fla. 4th DCA 1998), the court stated that “[t]o convict Appellant of grand theft of a motor vehicle, the state was required to present evidence that the vehicle in Appellant’s possession was the vehicle identified by the victim as stolen.” See also D.R.H. v. State, 761 So.2d 379, 380 (Fla. 2d DCA 2000) (concluding that the evidence was insufficient when “there was no effort by the state to establish beyond a reasonable doubt that the vehicle belonging to Mr. Powell was the same vehicle which D.R.H. admitted attempting to burglarize”); In re J.H., 579 So.2d 897 (Fla. 4th DCA 1991) (observing that the State failed to establish that the gold Seiko watch found in the appellant’s pocket was the same Seiko watch taken from the victim’s home). Here, the record demonstrates that the State failed to prove beyond a reasonable doubt that Carballo’s lawn mower was the one found in Goad’s possession. Thus, we reverse his judgment and sentence for pet-it theft.

Goad makes a similar argument on appeal with respect to the burglary charge, asserting that the State failed to prove that the dwelling Goad entered was Car-ballo’s dwelling. However, Goad did not make this argument in his motion for judgment of acquittal on the burglary charge and, thus, has not preserved this issue for review. An error with respect to the sufficiency of the evidence will be considered fundamental in a noncapital case only if “the evidence is insufficient to show that a crime was committed at all.” F.B. v. State, 852 So.2d 226, 230 (Fla.2003). Otherwise, a claim of insufficiency of the evidence must be specifically preserved for review. Id. at 231. Because the evidence on this charge was sufficient to show that a crime was committed, Goad is not entitled to relief on his unpreserved argument as to the burglary. With respect to the other arguments Goad makes for reversal of his burglary conviction, we affirm without comment.

Affirmed in part and reversed in part.

FULMER and VILLANTI, JJ., Concur.


text:
    Austin Shane SPEAS, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-2488.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 2004.
    Rehearing Denied Dec. 3, 2004.
   PER CURIAM.

Austin Shane Speas challenges the order of the trial court denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the order of the trial court without prejudice to any right Speas may have to file a facially sufficient motion pursuant to rule 3.800(a).

In his motion, Speas alleged that the trial court, in violation of Hale v. State, 630 So.2d 521 (Fla.1993), imposed consecutive habitual offender sentences for offenses that were committed in a single criminal episode. Speas alleged that his claim could be determined from the face of the record, more specifically from the “police arrest affidavit, witness statements, and the factual basis established by the State.” To establish a facially sufficient rule 3.800(a) claim that his habitual offender sentences were imposed in violation of Hale, a defendant must identify with particularity the nonhearsay record documents upon which he relies. See Harris v. State, 875 So.2d 735, 737 (Fla. 2d DCA 2004). The police arrest affidavit is not a nonhearsay document; neither is the factual basis for the offenses which is provided at the time of the plea by the prosecutor to determine the accuracy of the plea and thereby enable the trial court to ensure that the facts of the case fit the offense or offenses with which the defendant is charged. See Williams v. State, 316 So.2d 267, 271 (Fla.1975). In establishing a factual basis, the prosecutor is reporting facts obtained from the witnesses to the offense, and thus the prosecutor’s statements constitute hearsay. See Neal v. State, 697 So.2d 903, 906 (Fla. 2d DCA 1997) (holding that the prosecutor’s reporting of facts developed by a third party constitutes hearsay). “Witness statements” may or may not constitute nonhearsay portions of the record. However, Speas has not identified those statements or where they are to be found in the record. Speas has, therefore, not established a facially sufficient rule 3.800(a) Hale claim.

The trial court denied Speas’ 3.800(a) motion for the wrong reason. The sentencing court had imposed consecutive habitual offender sentences of prison on one count followed by probation on another count. Based on this court’s holding in Brudie v. State, 467 So.2d 1113 (Fla. 2d DCA 1985), the trial court denied Speas’ rule 3.800(a) Hale claim on the ground that it would have been reversible error for the sentencing court to impose concurrent terms of prison and probation. Regardless of the holding of Brudie, the supreme court held in Hale that a trial court may not impose consecutive habitual offender sentences for offenses that occurred in a single criminal episode. Our affirmance is without prejudice to any right Speas might have to file a facially sufficient rule 3.800(a) motion.

Affirmed.

SALCINES, VILLANTI, and WALLACE, JJ., concur.