author:
PER CURIAM.
      COBB, Judge,

text:
    H.N.P. v. STATE.
    CR-01-1409.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 2003.

      William H. Filmore, Ozark, for appellant.
    William H. Pryor, Jr., atty. gen., and Jack W. Willis, asst. atty. gen., for appel-lee.
   PER CURIAM.

The appellant, H.N.P., was charged in a delinquency petition with disorderly conduct. After a hearing, the juvenile court adjudged her delinquent, placed her on probation and ordered her to write letters of apology to the El Palacio Mexican restaurant and Tim Byrd.

At the adjudication hearing, Deputy Sheriff Tim Byrd testified that, at approximately 6:30 or 7:00 p.m. on October 16, 2001, he and his family were having dinner at El Palacio Mexican restaurant in Ozark. H.N.P. and a companion were seated across the room. Byrd saw H.N.P. talking on her cellular phone and heard her say, in a voice that was clearly audible, that someone had “showed their a — .” He also heard her say “motherf — er” and “f — .” Byrd stated that 16 to 18 other people were in the restaurant and that some of them were elderly or very young. When Byrd realized that people were becoming embarrassed, he told H.N.P. not to speak like that in a public place. She lowered her voice but then “flipped him off’ when she later walked past him. The people seated next to H.N.P. told Byrd that she had continued to use obscene language after he spoke to her, but she had spoken so that he could not hear. H.N.P. testified in her own behalf; she stated that she had been discussing a quarrel she had previously had with her sister. She admitted saying that her sister “showed her a — ” but denied using any other “cuss words.” She also denied making any obscene gestures.

H.N.P. contends that the evidence was insufficient to support the court’s finding of disorderly conduct. She argues that the words at issue were not “fighting words” because they were used over a telephone and could not have provoked physical retaliation. She further argues that the words were not calculated to cause an immediate breach of the peace.

Section 13A-11-7, Ala.Code 1975, provides, in pertinent part:

“(a) A person commits the crime of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
“(3) In a public place uses abusive or obscene language or makes an obscene gesture.... ”

The words “abusive or obscene language” and “obscene gesture” in § 18A-11-7 have been narrowly interpreted to apply “ ‘only to “fighting words.” ’ ” Robinson v. State, 615 So.2d 112, 113 (Ala.Crim.App.1992), quoting Swann v. City of Huntsville, 455 So.2d 944, 950 (Ala.Crim.App.1984).

“Fighting words” are “personally abusive epithets which, when addressed to the ordinary citizen are, as a matter of common knowledge, likely to provoke violent reaction.” Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). “[Fighting words] by their very utterance provoke a swift physical retaliation and incite an immediate breach of the peace.” Skelton v. City of Birmingham, 342 So.2d 933, 936-37 (Ala.Crim.App.), remanded on other grounds, 342 So.2d 937 (Ala.1976). “ ‘The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight.’ ” Chaplinsky v. New Hampshire, 315 U.S. 568, 573, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (quoting State v. Chaplinsky, 91 N.H. 310, 18 A.2d 754, 762 (1941)).

Here, H.N.P.’s words could not cause the addressee to fight because they were not directed to anyone in the restaurant. There also was no evidence indicating that Deputy Byrd or anyone else in the restaurant had been tempted to intervene physically on the addressee’s behalf. “It is not enough [that words] merely arouse anger or resentment.” Skelton v. City of Birmingham, 342 So.2d at 937. They “ ‘must be sufficiently offensive to raise a probability of physical retaliation by the addressee or someone acting in his interest.’ ” B.E.S. v. State, 629 So.2d 761, 765 (Ala.Crim.App.1993), quoting A.L.I. Model Penal Code § 250.4 at 365-66 (1980). Compare James M. v. State, 111 N.M. 529, 807 P.2d 227 (1991)(“fighting words” where defendant flailed his arms and repeatedly yelled “f — you” at another civilian, both parties were upset, and crowd had gathered to watch).

With regard to H.N.P.’s gesture to Deputy Byrd, it was vulgar and offensive but insufficient to constitute “fighting words.” “ ‘The fact that [a police] officer encounters ... vulgarities with some frequency, and the fact that his training enables him to diffuse a potentially volatile situation without physical retaliation, ... means that words which might provoke a violent response from the average person do not, when addressed to a police officer, amount to “fighting words.” ’ ” Robinson v. State, 615 So.2d at 114. See B.E.S. v. State, supra (“F — [you]” not fighting words when spoken to police officer).

Because the State failed to prove that H.N.P. used “fighting words,” the adjudication of delinquency must be reversed and a judgment rendered in H.N.P.’s favor.

REVERSED AND JUDGMENT RENDERED.

McMILLAN, P.J., and BASCHAB and SHAW, JJ., concur.

COBB, J., dissents, with opinion.

WISE, J., joins dissent.

COBB, Judge,

dissenting.

I respectfully dissent from the majority opinion, which reverses the adjudication of the Juvenile Court of Dale County finding H.N.P. to be a delinquent child based on a charge of disorderly conduct.

In addition to the facts set forth by the majority, the following ore tenus evidence was presented at the delinquency hearing. Deputy Sheriff Tim Byrd testified that in the early evening of October 16, 2001, he was dining with his wife and son at the El Palacio Mexican restaurant in Ozark. In his opinion, 16 to 18 other diners were in the restaurant. H.N.P. and a" companion entered the restaurant. Byrd stated that “[he’d] never seen [H.N.P. or her companion] before in [his] life” but that his wife recognized H.N.P. as a student at a local school from the wife’s job at the school. (R. 11) While dining, Byrd’s attention was drawn across the room to H.N.P. because, according to Byrd, H.N.P. began to talk on her cellular telephone in a loud voice saying, “ ‘Well, I don’t give a damn what they said, she showed her a — ’ ... and then used a couple more expletives in that sentence, four-letter words.” (R. 6.) According to Byrd, the other expletives being uttered by H.N.P. on the cellular telephone and “in the conversation with her friend” (R. 8) were “motherf-” and “f — .” (R. 8.) Realizing that the expletives being uttered by H.N.P. were embarrassing the diners in the restaurant, especially the elderly diners, Byrd “told [H.N.P.] [from] across the room [that] she needed to be quiet, you know, not speak like that in a public place.” (R. 6.) Byrd stated that because “[he] was just really trying to [quiet her] down,” (R. 11), he did not identify himself as a deputy sheriff. He said that at no time during the incident did he identify himself as a deputy sheriff.

From that point, H.N.P. “[quieted] down a little bit” but, according to Byrd, “she would look at [him] every now and then and give [him] a real hard look.” (R. 7.) According to Byrd, when H.N.P. walked by his table to go to the bathroom, he saw from the corner of his eye that “she flipped [him] off’ making an obscene gesture, and “just continued to act belligerent, like a pure idiot as far as [Byrd] was concerned.” (R. 7.) It is not entirely clear from the record, but it appears that after this occurrence, Byrd once again told H.N.P. “that she needed to be quiet.” (R. 7.) Also, Byrd testified that he walked with a limp. According to Byrd, as H.N.P. was leaving the restaurant she “mocked the way [he] walk[ed] and flipped [him] off, and [he] thought [he] heard [her say] f— you.” (R. 8.) Byrd stated that after H.N.P. left the restaurant, the elderly diners thanked him for asking H.N.P. to be quiet. However, according to Byrd, he was told by those diners that H.N.P. “really never quit, [she] just started talking where [Byrd] couldn’t hear [her]. But those people heard every word [she] said.” (R. 8.) Byrd also testified that because the diners close to H.N.P. had been so disturbed by H.N.P.’s conduct “[he] heard the waitress say that they didn’t need to pay.” (R. 9.)

At the conclusion of Byrd’s testimony, H.N.P. moved for a judgment of acquittal, arguing that her words did not constitute fighting words “in this particular case where it’s actually a juvenile saying the ... words to a police officer.” (R. 12.) H.N.P. argued that the words uttered must be fighting words to constitute disorderly conduct based on something a person said. The State argued that the motion was due to be denied because the profanity was spoken in a public restaurant, not just to a police officer. Based on the arguments, the juvenile court denied H.N.P.’s motion for a judgment of acquittal.

H.N.P., who was 16 years old at the time of the incident, testified that Byrd and his family were already seated in the restaurant when she and her companion arrived. She stated that before going to the restaurant she had argued with her 12-year-old sister. While in the restaurant she received a telephone call on her cellular telephone from a friend of her sister’s. H.N.P. stated that during this conversation with her sister’s friend, she was angry about the situation with her sister and that she did use the phrase “showed her [a — ]” (R. 19), during the conversation and that she was probably “being loud on [her] cell phone. But [she] did not use any other cuss words.” (R. 20.) Moreover, she testified that she did not mock Deputy Byrd because she did not know Deputy Byrd walked with a limp. In that regard, she testified that she could not mock Byrd because she did not know him, that she “had never seen him before in [her] life,” (R. 17), and that, because he was seated when she arrived, she had never seen him walk.

At the conclusion of the hearing H.N.P. renewed her motion for a judgment of acquittal on the grounds previously stated. The juvenile court denied the motion and adjudicated H.N.P. a delinquent based on evidence of disorderly conduct.

“ ‘ “Where evidence is presented to the trial court ore terms in a nonjury case, a presumption of correctness exists as to the court’s conclusions on issues of fact; its determination will not be disturbed unless clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Odom v. Hull, 658 So.2d 442 (Ala.1995)....” “ ‘[Ex parte Agee,] 669 So.2d [102,] 104 [ (Ala.1995)].’ ”

State v. Thomas, 843 So.2d 834, 838 (Ala.Crim.App.2002)(quoting State v. Hill, 690 So.2d 1201, 1203 (Ala.1996)).

I do not believe that the juvenile court’s ruling was clearly erroneous.

I believe that the disorderly-conduct statute was designed to protect people from using profane language in a public setting where such language would annoy or alarm people of ordinary sensibilities. The circumstances presented here are, I believe, exactly the type that the statute was meant to punish.

In Smith v. City of Anniston, 668 So.2d 96, 98 (Ala.Crim.App.1995), this court stated the following regarding disorderly conduct:

“The commentary to § 13A-11-7, Code of Alabama, 1975, makes it clear that this statute is designed ‘to protect the public from being annoyed, inconvenienced or alarmed.’ This section ‘encompasses the common law offenses of breach of the peace and disturbing the peace.’ Id. While it is clear that the statute requires that the offender intend to cause public inconvenience, annoyance, or alarm, or that the offender recklessly creates a risk thereof, such questions of intent are generally matters for the finders of fact. In the present case, because the appellant made the offensive comment, not only to the police officer, but also in the presence of other individuals who could hear and react, whether his conduct amounted to disorderly conduct was a question of fact for the jury. Where facts are presented from which the jury could reasonably infer that the alleged crime has been committed, the question must be submitted to the jury. See generally, Brandon v. State, 542 So.2d 1316 (Ala.Cr.App. 1989). ‘The jury is then under a duty to draw permissible inferences from the circumstantial evidence presented and base its verdict accordingly.’ Id. at 1318.”

See also Ivey v. State, 710 So.2d 946, 947 (Ala.Crim.App.l998)(“[T]he appellant, using abusive language, yelled at ... his next-door neighbor. A number of [his neighbor’s] guests ... overheard the appellant’s language. Because there was sufficient evidence of the appellant’s disorderly conduct, the trial court properly submitted the case to the jury.”); Hutchins v. City of Alexander City, 822 So.2d 459, 462 (Ala.Crim.App.2000)(“[T]he State’s evidence established that Hutchins intended to cause public inconvenience, annoyance, or alarm, or that she recklessly created a risk thereof, by making unreasonable noise and by using abusive language in a public place. Thus, the trial court did not err in denying Hutchins’s motion for a judgment of acquittal.”); Pitts v. City of Auburn, 695 So.2d 236, 239 (Ala.Crim.App.l996)(“Based on the appellant’s act of repeatedly blowing his horn and shouting obscenities at Hill in an area where many people were nearby and causing a disturbance to the extent that people began to assemble in the road and in their yards, there was no error when the trial court denied the appellant’s motion for a judgment of acquittal.”).

Once the annoyance of her conversation was brought to her attention, H.N.P. clearly displayed an intent to annoy and disturb the other diners at the restaurant. Moreover, her intent was to annoy and disturb the patrons of the restaurant when she “flipped off’ Deputy Byrd. This is a classic situation of profanity being uttered in a public setting in order to disturb and annoy those within its hearing.

For these reasons, I believe the State presented sufficient evidence of disorderly conduct to support an adjudication of delinquency. Therefore, I respectfully dissent.

      . ' “However, when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court's judgment. Ex parte Board of Zoning Adjustment of the City of Mobile, 636 So.2d 415 (Ala. 1994)." ’ ” State v. Thomas, 843 So.2d at 838 (quoting State v. Hill, 690 So.2d 1201, 1203 (Ala.1996), quoting in turn Ex parte Agee, 669 So.2d 102, 104 (Ala.1995)).


source: Caselaw Access Project

author: SHAW, Judge. COBB, Judge,

license: Public Domain

text:
    Cendi AMOS v. STATE of Alabama.
    CR-01-1892.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 2003.
    James E. Harris, Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   SHAW, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and BASCHAB and WISE, JJ., concur. COBB, J., concurs specially, with opinion.

COBB, Judge,

concurring specially.

I concur with the majority’s unpublished memorandum as to Issue II, regarding the alleged improper communication by the prosecutor. I also concur with the majority’s resolution of Issue I, because the record before us does not contain sufficient evidence to support Cendi Amos’s claim that the trial court erred when it denied her motion to vacate her guilty plea. I write specially only to note that it appears to me that trial counsel’s representation of Amos and her husband, her co-defendant, created a conflict of interest, but that this claim was not adequately presented to the trial court. Contrary to Amos’s assertions on appeal, the record does not contain trial counsel’s motion to withdraw on the basis of a conflict of interest. Moreover, counsel continued to represent Amos throughout the guilty-plea proceeding. Trial counsel filed a motion to withdraw only after retained counsel filed a motion to vacate Amos’s guilty plea, and after an untimely hearing on that plea had been held. The only method by which Amos can seek relief for this likely error is through postcon-viction proceedings.


author: SHAW, Judge.

text:
    STATE of Alabama v. Mark Christopher WHITE.
    CR-01-1660.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 2003.

      William H. Pryor, Jr., atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellant.
    Barry Teague, Montgomery, for appel-lee.
   SHAW, Judge.

The State of Alabama appeals from the trial court’s order granting Mark Christopher White’s motion to suppress evidence of cocaine seized as a result of a search of White’s residence. At the hearing on White’s motion to suppress, Vanessa Wright, a corporal with the Montgomery Police Department’s Narcotics and Intelligence Bureau, testified that on February 15, 2000, she received an anonymous telephone call from a citizen who indicated that she lived in the same apartment complex as White and that she suspected that White was engaging in drug activity. The caller gave Cpl. Wright a physical description of White, a description of the vehicle he drove, and the number of the apartment in the complex he was living in at the time. The caller also told Cpl. Wright that an individual had come to her door one night, and had asked for “Mike” and had told her that he wanted to “get a forty.” (R. 10.) Cpl. Wright testified that she went to the apartment complex on February 18, 2000, and verified that the vehicle the caller described was parked in the parking lot. Cpl. Wright then checked the license plate of the vehicle and determined that it was registered to White. She also looked up White’s address and telephone number in the telephone book to verify that he lived at the apartment complex.

Cpl. Wright testified that she then decided to “conduct a subversive tactic in order to expose his drug activity.” (R. 3.) On February 22, 2000, she and several other officers with the narcotics bureau set up a perimeter around White’s residence, she then made a “lead call” to “White, which she described as “calling the house pretending to be a friend and letting that person know that they needed to get their drugs out of the house; the police are coming.” (R. 3.) Shortly after she made the telephone call to White’s residence, Cpl. Wright said, White came out of the apartment building holding a small child; he “nervously” looked around and then placed the child down in the parking lot and “ran back” to his apartment, leaving the child alone in the parking lot. (R. 3.) Approximately two minutes later, White again emerged from his apartment. At that point, Cpl. Wright said, she approached White, told him who she was and why she was there, and asked if he would consent to a search of his apartment. White signed a consent form, which was introduced into evidence at the suppression hearing. During the search of White’s residence, cocaine was found on the back porch.

Following the suppression hearing, the trial court granted White’s motion to suppress on the ground that the anonymous telephone call was not sufficiently corroborated to establish reasonable suspicion to stop White in the parking lot of the apartment complex and to obtain his consent to search his apartment.

On appeal, the State contends that the trial court erred in granting White’s motion to suppress because, it says, the initial encounter with White in the parking lot of the apartment complex was not a seizure and, therefore, no reasonable suspicion was necessary. However, the State did not present this argument to the trial court during the hearing on White’s motion to suppress; the prosecutor argued only that there was reasonable suspicion to stop White. See State v. Brown, 591 So.2d 113, 115 (Ala.Crim.App.1991), wherein this Court refused to consider the merits of the State’s first, third, and fourth arguments, which were made on appeal in an attempt to obtain a reversal of the trial court’s order suppressing drug evidence. Because the State never argued to the trial court that the stop of White was not a seizure, that argument has been waived for purposes of seeking a reversal of the trial court, and we express no opinion as to whether the stop was, in fact, a seizure.

The State also argues on appeal that even if the stop did constitute a seizure, as the trial court implicitly found, it was a valid stop because, the State says, the anonymous tip was sufficiently corroborated so as to establish reasonable suspicion to warrant stopping White. We agree.

Initially, we note that the standard of review in this case is de novo because the evidence at the suppression hearing was undisputed; Cpl. Wright was the only witness to testify at the hearing. See State v. Hill, 690 So.2d 1201 (Ala.1996), and Barnes v. State, 704 So.2d 487 (Ala.Crim.App.1997).

“The United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), held that ‘a police officer may, in appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest.’ 392 U.S. at 22, 88 S.Ct. at 1880. The standard for allowing a Terry stop is whether there is a reasonable suspicion that ‘the person being stopped has engaged in some type of criminal activity.’ Webb v. State, 500 So.2d 1280, 1281 (Ala.Crim.App.), cert. denied, 500 So.2d 1282 (Ala.1986).”

Ex parte Carpenter, 592 So.2d 627, 629 (Ala.1991).

“It is well settled that ‘[information provided by a reliable informant can provide the reasonable suspicion required to justify a Terry stop.’ Lamar v. State, 578 So.2d [1382] at 1385 [ (Ala.Crim.App.1991),] and authorities cited therein. Whether the information provided by an informant in a particular case is sufficient to establish reasonable suspicion is to be determined by applying the ‘totality of the circumstances’ test set out in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Alabama v. White, 496 U.S. [325] at 330-31, 110 S.Ct. [2412] at 2416, 110 L.Ed.2d 301 [ (1990)]. Under this test, which was formulated in the context, of probable cause, the informant’s ‘veracity,’ ‘reliability,’ and ‘basis of knowledge’ are ‘highly relevant’ factors to be considered. Gates, 462 U.S. at 230, 103 S.Ct. at 2328. However, because reasonable suspicion is a lower standard, there need not be as strong a showing with regard to these factors as is required for the establishment of probable cause, Alabama v. White, 496 U.S. at 330-31, 110 S.Ct. at 2415.”

Wilsher v. State, 611 So.2d 1175, 1179 (Ala.Crim.App.1992).

In this ease, the tip came from an anonymous caller.

“Because the veracity of the person giving the anonymous tip is ‘by hypothesis largely unknown, and unknowable,’ Illinois v. Gates, 462 U.S. [213] at 237, 103 S.Ct. [2317] at 2331 [ (1983) ], and because ordinary citizens do .not generally provide extensive recitations of the basis of their everyday observations, an anonymous tip, without more, seldom demonstrates an informant’s reliability or the basis of the informant’s knowledge.”

Ex parte Barnette, 624 So.2d 507, 508 (Ala.1993). However, in Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), the United States Supreme Court held that a tip from an anonymous informant could provide- reasonable suspicion for an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), if the tip was sufficiently corroborated through independent police work. The Court stated:

“Illinois v. Gates, 462 U.S. 213 (1983), dealt with an anonymous tip in the probable-cause context. The Court there abandoned the ‘two-pronged test’ of Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969), in favor of a ‘totality of the circumstances’ approach to determining whether an informant’s tip establishes probable cause. Gates made clear, however, that those factors that had been considered critical under Aguilar and Spinelli — an informant’s ‘veracity,’ ‘reliability,’ and ‘basis of knowledge’ — remain ‘highly relevant in determining the value of his report.’ 462 U.S., at 230. These factors are also relevant in the reasonable-suspicion context, although allowance must be made in applying them for the. lesser showing required to meet that standard.
“The opinion in Gates recognized that an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity inasmuch as ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations and given that the veracity of persons supplying anonymous tips is ‘by hypothesis largely unknown, and unknowable.’ Id,., at 287. This is not to say that an anonymous caller could never provide the reasonable suspicion necessary for a Terry [ v. Ohio, 392 U.S. 1 (1968),] stop. But the tip in Gates was not an exception to the general rule, and the anonymous tip in this case is like the one in Gates: ‘[It] provides virtually nothing from which one might conclude that [the caller] is either honest or his information reliable; likewise, the [tip] gives absolutely no indication of the basis for the [caller’s] predictions regarding [Vanessa White’s] criminal activities.’ 462 U.S., at 227. By requiring ‘[something more,’ as Gates did, ibid., we merely apply what we said in Adams [v. Williams, 407 U.S. 148 (1972) ]: ‘Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized,’ 407 U.S. at 147. Simply put, a tip such as this one, standing alone, would not ‘ “warrant a man of reasonable caution in the belief’ that [a stop] was appropriate.’ Terry, supra, quoting Carroll v. United States, 267 U.S. 132, 162 (1925).
“As there was in Gates, however, in this case there is more than the tip itself. The tip was not as detailed, and the corroboration was not as complete, as in Gates, but the required degree of suspicion was likewise not as high. We discussed the difference in the two standards last Term in United States v. Sokolow, 490 U.S. 1, 7 (1989):
“ ‘The officer [making a Terry stop] ... must be able to articulate something more than an “inchoate and un-particularized suspicion or ‘hunch.’ ” [Terry, 392 U.S.] at 27. The Fourth Amendment requires “some minimal level of objective justification” for making the stop. INS v. Delgado, 466 U.S. 210, 217 (1984). That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. We have held that probable cause means “a fair probability that contraband or evidence of a crime will be found,” [Gates, 462 U.S., at 238] and the level of suspicion required for a Terry stop is obviously less demanding than for probable cause.’
“Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Adams v. Williams, supra, demonstrates as much. We there assumed that the unverified tip from the known informant might not have been reliable enough to establish probable cause, but nevertheless found it sufficiently reliable to justify a Terry stop. 407 U.S., at 147. Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the ‘totality of the circumstances — the whole picture,’ United States v. Cortez, 449 U.S. 411, 417 (1981), that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable. The Gates Court applied its totality-of-the-circumstances approach in this manner, taking into account the facts known to the officers from personal observation, and giving the anonymous tip the weight it deserved in light of its indicia of reliability as established through independent police work. The same approach applies in the reasonable-suspicion context, the only difference being the level of suspicion that must be established. Contrary to the court below, we conclude that when the officers stopped respondent, the anonymous tip had been sufficiently corroborated to furnish reasonable suspicion that respondent was engaged in criminal activity and that the investigative stop therefore did not violate the Fourth Amendment.
“It is true that not every detail mentioned by the tipster was verified, such as the name of the woman leaving the budding or the precise apartment from which she left; but the officers did corroborate that a woman left the 235 building and got into the particular vehicle that was described by the caller. With respect to the time of departure predicted by the informant, Corporal Davis testified that the caller gave a particular time when the woman would be leaving, App. 5, but he did not state what that time was. He did testify that, after the call, he and his partner proceeded to the Lynwood Terrace Apartments to put the 235 building under surveillance, id., at 5-:6. Given the fact that the officers proceeded to the indi-
cated address immediately after the call and that respondent emerged not too long thereafter, it appears from the record before us that respondent’s departure from the building was within the timeframe predicted by the caller. As for the caller’s prediction of respondent’s destination, it is true that the officers stopped her just short of Do-bey’s Motel and did not know whether she would have pulled in or continued past it. But given that the 4-mile route driven by respondent was the most direct route possible to Dobe/s Motel, [White v. State,] 550 So.2d [1074], at 1075 [ (Ala.Crim.App.1989) ], Tr. of Oral Arg. 24, but nevertheless involved several turns, App. 7, Tr. of Oral Arg. 24, we think respondent’s destination was significantly corroborated.
“The Court’s opinion in Gates gave credit to the proposition that because an informant is shown to be right about some things, he is probably right about other facts that he has alleged, including the claim that the object of the tip is engaged in criminal activity. 462 U.S., at 244. Thus, it is not unreasonable to conclude in this case that the independent corroboration by the police of significant aspects of the informer’s predictions imparted some degree of reliability to the other allegations made by the caller.
“We think it also important that, as in Gates, ‘the anonymous [tip] contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted.’ Id., at 245. The fact that the officers found a car precisely matching the caller’s description in front of the 235 building is an example of the former. Anyone could have ‘predicted’ that fact because it was a condition presumably existing at the time of the call. What was important was the caller’s ability to predict respondent’s future behavior, because it demonstrated inside information — a special familiarity with respondent’s affairs. The general public would have had no way of knowing that respondent would shortly leave the building, get in the described car, and drive the most direct route to Dobey’s Motel. Because only a small number of people are generally privy to an individual’s itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to rehable information about that individual’s illegal activities. See ibid. When significant aspects of the caller’s predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop.
“Although it is a close case, we conclude that under the totality of the circumstances the anonymous tip, as corroborated, exhibited sufficient indicia of reliability to justify the investigatory stop of respondent’s car.”

496 U.S. at 328-32, 110 S.Ct. 2412 (emphasis added).

Here, as in White, the anonymous tip provided nothing from which one might conclude that the caller was honest or that her information was reliable, and the tip gave absolutely no indication of the basis for the caller’s knowledge. In addition, although the majority of the information provided by the anonymous caller was corroborated by Cpl. Wright — e.g., that White lived at the apartment complex the caller said he did, that he owned the vehicle the caller said he owned, and that the vehicle was parked in the parking lot of the apartment complex — -this information could have easily been obtained by the general public; “[it] did not predict future actions of the appellant and, standing alone, offered little indication of criminal — or even suspicious — activity.” King v. State, 736 So.2d 1122, 1124 (Ala.Crim.App.1997). Therefore, the tip, even though corroborated, was not sufficient, by itself, to establish reasonable suspicion to stop White.

However, in this case, there was more than just the anonymous tip. Cpl. Wright did more than merely corroborate the information provided by the anonymous caller; she also made a “lead call” to White pretending to be a friend and warning him that he should get his drugs out of his apartment because the police were coming. Shortly after the call, a man, matching the description of White given by the anonymous caller and later positively identified as White, emerged from the apartment building carrying a small child. After looking around “nervously,” he put the child down in the parking lot and “ran back” inside his apartment, leaving the child outside alone. Cpl. Wright testified that White emerged again from the apartment building approximately two minutes later, at which point Cpl. Wright approached him.

Nervousness alone is not sufficient to establish reasonable suspicion; however, it is a factor to be considered, and when coupled with other suspicious factors may establish reasonable suspicion. See generally Abner v. State, 741 So.2d 440 (Ala.Crim.App.1998), and State v. Washington, 623 So.2d 392 (Ala.Crim.App.1993). In addition, “[i]t is well settled that furtive actions at the approach of law officers ‘are strong indicia of mens rea.’” State v. Murray, 733 So.2d 945, 949-50 (Ala.Crim.App.1999), quoting Ex parte Tucker, 667 So.2d 1339, 1347 (Ala.1995).

The evidence indicated that White came out of his apartment shortly after being informed by Cpl. Wright that he should get the drugs out of his apartment because the police were coming. When he came out, he looked around nervously, and then ran back to his apartment, leaving the small child he was carrying in the parking lot alone. He emerged from his apartment again approximately two minutes later. This behavior, in anticipation of an encounter with the police, was bizarre and could have led Cpl. Wright to reasonably conclude that White had something to hide in his apartment and that he was in the process of fleeing in order to avoid any contact with the police. We conclude, based on the totality of the circumstances, that the tip from the anonymous caller and Cpl. Wright’s corroboration of much of the caller’s information, when considered in conjunction with White’s nervousness and his unusual furtive actions following the lead call, were sufficient to establish reasonable suspicion for an investigatory stop of White. Therefore, we hold that the trial court erred in granting White’s motion to suppress.

Based on the foregoing, the judgment of the trial court is reversed and this case is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

McMILLAN, P.J„ and COBB, BASCHAB, and WISE, JJ., concur.

      . White was subsequently indicted for trafficking in cocaine and failure to affix a tax stamp.

      . We note that White argues on appeal that the initial telephone call by Cpl. Wright to his residence was itself a seizure under the Fourth Amendment. Although the trial court stated in its order granting Wright's motion to suppress that the telephone call was "permissible,” White never argued to the trial court, either in his motion to suppress or at the hearing on the motion, that the telephone call was a seizure or that it was otherwise impermissible. (C. 7.) Therefore, the propriety of the telephone call is not properly before this Court for review, and we express no opinion on that issue. See, e.g., Pace v. State, 766 So.2d 201 (Ala.Crim.App.1999). We likewise express no opinion as to the voluntariness of White's consent to search because White also never argued to the trial court, either in his motion to suppress or at the hearing on the motion, that his consent was involuntary.


author: WISE, Judge.

text:
    Malcolm BROOKS v. STATE of Alabama.
    CR-01-2063.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 2003.

      Malcolm Brooks, pro se.
    William H. Pryor, Jr., atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellee.
   WISE, Judge.

Malcolm Brooks appeals from the circuit court’s denial of his Rule 32, Ala.R.Crim. P., petition for postconviction relief, in which he attacked his conviction for manslaughter, see § 13A-6-3, Ala.Code 1975, and the resulting sentence of 25 years’ imprisonment.

On January 10, 2000, Brooks was indicted by the Montgomery County grand jury for the intentional murder of Mercury Coley. On October 19, 2000, Brooks pleaded guilty to the lesser-included offense of manslaughter and was sentenced on December 1, 2000, to 25 years’ imprisonment. During his guilty-plea colloquy, Brooks admitted to having two prior felony convictions, and he was informed that he faced a minimum sentence of 15 years, based on the mandatory enhancement requirement under the Habitual Felony Offender Act. At the sentencing hearing, the State informed the court that Brooks had only one prior felony conviction. However, the State requested that Brooks’s sentence be enhanced under the firearm enhancement provision of § 13A-5-6(a)(5), Ala.Code 1975, thus making Brooks’s minimum sentence 20 years. The court then sentenced Brooks to 25 years’ imprisonment. Brooks did not appeal the conviction.

On January 3, 2002, Brooks filed this Rule 32 petition, alleging (1) that his guilty plea was involuntary because, he says, he was misinformed that the minimum sentence he would receive was 15 years, when he was instructed at sentencing that he faced a minimum sentence of 20 years; (2) that his guilty plea was involuntary because his trial counsel did not notify him that he was pleading guilty to intentional, rather than reckless, manslaughter; and (3) that trial counsel’s performance was deficient because counsel failed to object to the court’s announcement of the incorrect minimum sentence, a violation of Rule 14.4(a)(l)(ii), Ala.R.Crim.P.

It is well-established precedent that the trial court must notify a defendant of the correct sentencing range when the defendant pleads guilty.

“ ‘The Alabama Supreme Court and this Court “have consistently held that a defendant must be informed of the maximum and minimum possible sentences as an absolute constitutional prerequisite to the acceptance of a guilty plea.” Ex parte Rivers, 597 So.2d 1308, 1309 (Ala.1991). It is well settled, moreover, that “if the appellant’s sentence could be enhanced under any of the enhancement statutes, the appellant should be informed of the additional sentence he could receive under the applicable enhancement statute.” Elrod v. State, 629 So.2d 58, 59 (Ala.Cr.App.1993), citing Rivers. Accord, White v. State, 616 So.2d 399 (Ala.Cr.App.1993); Looney v. State, 563 So.2d 3, 4 (Ala.Cr.App.1989); Smith v. State, 494 So.2d 182 (Ala.Cr.App.1986).’ ”

Kennedy v. State, 698 So.2d 1174, 1177 (Ala.Crim.App.1997) (quoting Aaron v. State, 673 So.2d 849, 849-50 (Ala.Crim.App.l995)(emphasis added in Kennedy)).

Furthermore, this Court has stated:

“ ‘[T]he Alabama Supreme Court held that “a defendant, prior to pleading guilty, must be advised of the maximum and minimum potential punishment for his crime” by the trial court in order to sustain a ruling that the defendant voluntarily entered a guilty plea. See, Gordon v. State, 692 So.2d 869 (Ala.Cr. App.1996); Pritchett v. State, 686 So.2d 1300 (Ala.Cr.App.1996); Knight v. State, 65 Ala.App. 565, 317 So.2d 532 (1975); Moore v. State, 54 Ala.App. 463, 309 So.2d 500 (1975). This holding is supported by Boykin [v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)] and Rule 14.4, Ala.R.Crim.P. The rule that the trial judge conduct a colloquy with the defendant before accepting a guilty plea ensures that a criminal defendant is adequately advised of his rights so that he may make a voluntary and intelligent decision to enter such a plea.’ ”

Jones v. State, 727 So.2d 889, 891 (Ala.Crim.App.1998) (quoting Heard v. State, 687 So.2d 212, 213 (Ala.Crim.App.1996)).

Based on the foregoing, we hold that Brooks’s guilty plea was involuntary because the court misinformed him as to his possible sentence. Accordingly, the judgment of the circuit court is reversed and this cause is remanded to the Montgomery Circuit Court so that Brooks may have the opportunity to withdraw his guilty plea and to enter another plea after he has been informed of the correct sentencing range.

REVERSED AND REMANDED.

McMILLAN, P.J., and COBB, BASCHAB, and SHAW, JJ., concur.


author: PER CURIAM.

text:
    Kevin D. D’HAITI, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3197.
    District Court of Appeal of Florida, Third District.
    May 7, 2003.
    Kevin D. D’Haiti, in proper person.
    Charles J. Crist, Jr., Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee.
    Before JORGENSON, GODERICH, and GREEN, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Defendant appeals from an order denying his motion to correct an illegal sentence. Based upon the State’s proper confession of error and our prior opinion in D’Haiti v. State, 818 So.2d 670 (Fla. 3d DCA 2002), we again vacate the sentence and remand this matter to the trial court with specific directions to correct the written sentencing order in Circuit Court Case No. 95-30634 to conform to the oral sentence pronounced by the court in Circuit Court Case No. 95-30634.

Sentence vacated; remanded with directions.


author: FLETCHER, Judge. SCHWARTZ, Chief Judge

text:
    Virginia POPE, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellees.
    No. 3D02-2676.
    District Court of Appeal of Florida, Third District.
    June 4, 2003.
    Rehearing and Rehearing En Banc Denied Sept. 19, 2003.
    Virginia Pope, in proper person.
    John D. Maher (Tallahassee), for appel-lees.
    Before SCHWARTZ, C.J., and FLETCHER, J„ and NESBITT, Senior Judge.
   FLETCHER, Judge.

Virginia Pope appeals an order of the Florida Unemployment Appeals Commission [Commission] which order denies her certain supplementary benefits under the Temporary Extended Unemployment Compensation Act of 2002[Act] Public Law 107-147, Section 202(b)(4). We have examined the record and conclude that the Commission has correctly applied the Act.

Section 202(b) of the Act provides for extended unemployment compensation benefits for individuals who meet certain criteria. Subsection (4) provides that in order for an individual to be entitled to extended benefits the individual must have filed an initial claim for regular compensation after March 15, 2001. The extended benefits are calculated at 50% of the total regular compensation. The record shows that Ms. Pope filed a claim for regular compensation on March 19, 2001 with credits available of $881.00. The amount of her extended benefits ($440.00) was thus properly based on her wages as required by Section 448.111(2), Florida Statutes (2001). Ms. Pope now claims that the amount of her extended benefits should have been greater because she was misled into filing the March 19, 2001 claim for $881.00. Ms. Pope contends that had she not filed the March 19, 2001 claim, her extended benefits would have been based on an earlier 2000 claim for regular compensation of $7,254.00. What Ms. Pope misunderstands is that if she had not filed after March 15, 2001, Section 202(b)(4) would have precluded any claim for extended benefits.

Accordingly, the Commission’s decision is affirmed.

NESBITT, Senior Judge, concurs.

SCHWARTZ, Chief Judge

(dissenting).

The record indicates that employees of the Unemployment Compensation Program first misled Ms. Pope into filing a document which, they later misinformed her, precluded her filing a timely and appropriate claim for benefits to which she is undoubtedly entitled under the law. I would therefore hold that the appellee is doubly estopped from contesting the present claim. See Fraga v. Department of Health & Rehabilitative Servs., 464 So.2d 144 (Fla. 3d DCA 1984), pet. for review denied, 475 So.2d 694 (Fla.1985).


text:
    Kenny GOODRICH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3338.
    District Court of Appeal of Florida, Third District.
    June 11, 2003.
    Rehearing Denied Sept. 19, 2003.

      Robbins, Tunkey, Ross, Amsel, Raben, Waxman & Eiglarsh and Benjamin S. Waxman, for appellant.
    Charles J. Crist, Jr., Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before LEVY, FLETCHER, and SHEVIN, JJ.
   PER CURIAM.

Kenny Goodrich, Defendant below, appeals from a conviction and sentence for aggravated battery with a motor vehicle, violation of condition of pre-trial release, and tampering with a witness. We reverse.

The instant case stems from an incident involving the Defendant and Raisa Ferrer. The three witnesses at trial were Ferrer, the Defendant, and the police detective who investigated the case. Ferrer and the Defendant provided dramatically different characterizations of the incident in question, and the credibility of the witnesses was a major issue at trial. The Record reflects that, on fourteen separate occasions during defense counsel’s approximately 25-minute closing argument, the trial court instructed defense counsel to either “move on,” “move along,” “let’s move,” or “let’s go.” Clearly, the trial court wanted defense counsel to “move on” to another point in his argument. On appeal, the Defendant contends that these restrictions imposed by the trial court during defense counsel’s closing argument prevented defense counsel from fully addressing both the credibility and potential biases of Ferrer and the police detective. We agree.

The purpose of closing argument is to help the jury understand the issues presented in a case by applying the evidence to the applicable law. See Murphy v. Int’l Robotic Systems, Inc., 766 So.2d 1010, 1028 (Fla.2000) (quoting Hill v. State, 515 So.2d 176, 178 (Fla.1987)). Attorneys should be given great latitude in presenting their closing arguments, but they are required to confíne their argument to the facts and evidence presented to the jury, and all logical deductions therefrom. See Murphy, 766 So.2d at 1028 (quoting Knoizen v. Bruegger, 713 So.2d 1071, 1072 (Fla. 5th DCA 1998)); see also Crump v. State, 622 So.2d 963, 972 (Fla.1993). The control of comments made to the jury by counsel is within the discretion of the trial court, and an appellate court will not interfere unless a party demonstrates an abuse of discretion. See Crump, 622 So.2d at 972 (citing Occhicone v. State, 570 So.2d 902, 904 (Fla.1990), cert. denied, 500 U.S. 938, 111 S.Ct. 2067, 114 L.Ed.2d 471 (1991)). In the instant case, the trial court abused its discretion through repeatedly telling defense counsel to “move on” throughout the closing argument, thereby preventing defense counsel from arguing his theory of the case.

In Herring v. New York, 422 U.S. 853, 862, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975), the United States Supreme Court explained the purpose of closing argument as follows:

It can hardly be questioned that closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case. For it is only after all the evidence is in that counsel for the parties are in a position to present their respective versions of the case as a whole. Only then can they argue the inferences to be drawn from all the testimony, and point out the weaknesses of their adversaries’ positions. And for the defense, closing argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant’s guilt.

Herring, 422 U.S. at 862, 95 S.Ct. 2550 (citing In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)). Moreover, some courts have further explained that preventing defense counsel from arguing her theory of the case violated a defendant’s right to effective assistance of counsel and right to present a defense. See, e.g., United States v. Kellington, 217 F.3d 1084, 1100 (9th Cir.2000) (citing Conde v. Henry, 198 F.3d 734, 739 (9th Cir.1999)). In the instant case, the credibility and biases of the witnesses who testified at trial were central to the Defendant’s theory of the case. By preventing counsel from arguing those issues fully, the trial court denied the Defendant the right to effective assistance of counsel and certainly hindered the defense counsel’s “last clear chance” to persuade the jury that there may be reasonable doubt of the defendant’s guilt.

Finally, as an entirely separate matter, it should be noted that a trial court should avoid making a remark within earshot of the jury that is capable “directly or indirectly, expressly, inferentially, or by innuendo” of conveying any impression as to the view it takes of the case or that indicates an opinion as to the weight, character, or credibility of the evidence adduced. Brown v. State, 678 So.2d 910, 911 (Fla. 4th DCA 1996) (quoting Raulerson v. State, 102 So.2d 281 (Fla.1958)). Also, “judges must make sure that their conduct and comments do not lead to even the appearance of bias.” Foster v. State, 778 So.2d 906, 917 (Fla.2000) (citing Peek v. State, 488 So.2d 52 (Fla.1986)). Here, in addition to the interference with defense counsel’s closing argument, the trial court’s actions raise a concern because of the number of times that the trial court told defense counsel to “move on”. It is not beyond the realm of possibility that, after hearing the trial court constantly implore defense counsel to “move on,” the jury may have been given the impression that the trial judge — the only other neutral party in the courtroom' — did not care for counsel’s argument.

Accordingly, for the foregoing reasons, the conviction below is reversed and this cause is remanded for a new trial.

Reversed and remanded.


text:
    AMERICAN HOME ASSURANCE CO., Appellant, v. ROSEN BUILDING SUPPLIES, INC., Appellee.
    No. 3D02-2230.
    District Court of Appeal of Florida, Third District.
    June 11, 2003.
    Siegfried, Rivera, Lerner De La Torre & Sobel and Stuart H. Sobel; H. Hugh McConnell, Coral Gables, for appellant.
    Podhurst, Orseck, Josefsberg, Eaton, Meadow, Oin & Perwin, P.A., and Joel S. Perwin, Miami, for appellee.
    Before LEVY, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

American Home Assurance Company appeals from a Final Judgment in favor of Rosen Building Supplies, Inc. d/b/a Rosen Materials (“Rosen”). Rosen cross-appeals from the Final Judgment.

Based upon Rosen’s proper confession of error on the main appeal, we reverse the Final Judgment and set aside the Judgment Awarding Fees, Costs and Pre-Judgment Interest. Accordingly, this case is reversed and remanded to the trial court to reduce the Final Judgment by $85,324.13 and for a new determination of attorney’s fees, costs, and pre-judgment interest. We conclude that Rosen’s cross-appeal has no merit and affirm on that issue.

Reversed.


author: DAVIS, Judge.

text:
    Antonio Maurice NEAL, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4339.
    District Court of Appeal of Florida, Second District.
    June 13, 2003.
    Rehearing Denied Aug. 13, 2003.
   DAVIS, Judge.

Antonio Maurice Neal challenges the order of the trial court summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The motion contains fourteen grounds; however, several of the grounds incorporate more than one claim. We reverse and remand for further proceedings on three of the claims. We affirm, without comment, the trial court’s denial of the remainder of the claims.

Neal was convicted after jury trial of four counts of attempted first-degree murder of a law enforcement officer, one count of carjacking, two counts of false imprisonment, and one count of armed burglary. His convictions and sentences were affirmed on appeal. Neal v. State, 711 So.2d 1358 (Fla. 2d DCA 1998).

In the first claim in ground four of his rule 3.850 motion, Neal alleged that counsel was ineffective for failing to request that the trial court instruct the jury that it should consider Ida Yvette McDaniels’ pri- or inconsistent statements as relevant only to her credibility and not as substantive evidence of Neal’s guilt. This claim goes only to the carjacking and the false imprisonment convictions.

In his motion, Neal alleged that the evidence at trial showed that McDaniels and another female, Tameka Williams, were in the front seat of McDaniels’ car with McDaniels driving when they stopped and picked up three black males from an apartment. The black males, who all got into the back seat of the car, were Neal, John Hollis, and Gary Tippins. A few blocks later, several police cars pulled up behind McDaniels’ vehicle. According to Neal’s motion, McDaniels testified at trial that Hollis threatened her and told her not to stop and that she would have stopped had she not been threatened. Williams testified that someone threatened to kill McDaniels if she stopped. Williams heard more than one voice but could not recognize the voices. Very shortly thereafter, McDaniels and Williams exited the car, and McDaniels observed Hollis climbing into the front seat. Neal alleges that McDaniels testified that Neal never threatened her and that she did not recall him saying anything. The prosecutor then impeached McDaniels with the statement she had provided to the police the day after the incident, in which she indicated that Neal had threatened her and told her not to stop.

McDaniels’ statement to the police that Neal had threatened her was admissible at trial for impeachment purposes only. See Gudinas v. State, 693 So.2d 953 (Fla.1997). In Ivery v. State, 548 So.2d 887 (Fla. 2d DCA 1989), this court held that it was reversible error for the trial court, upon the defendant’s request, to fail to instruct the jury that the prior inconsistent statement of a prosecution witness was relevant only to the witness’s credibility and was not evidence of the defendant’s guilt. The Ivery court noted that in that case the error was not harmless because, apart from the prior inconsistent statement, the evidence against the defendant was “circumstantial and certainly not compelling.” Id. at 888.

In the present case, Neal was convicted of two counts of false imprisonment. False imprisonment is defined as “forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against his will.” § 787.02(l)(a), Fla. Stat. (1998).

“Carjacking” means the taking of a motor vehicle which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the motor vehicle, when in the course of the taking there is the use of force, violence, assault, or putting in fear.

§ 812.133(1), Fla. Stat. (1993). Thus, whether Neal threatened McDaniels in order to keep her from stopping for the police was a central issue for the jury to consider in determining Neal’s guilt on the carjacking and the false imprisonment counts. We therefore conclude that Neal presented a facially sufficient claim of ineffective assistance of counsel based on counsel’s failure to request an instruction that the prior inconsistent statement should be considered only for purposes of determining credibility and not as substantive evidence.

The trial court denied this claim, finding that counsel’s performance was not deficient because “a jury instruction regarding prior inconsistent statements should be given where witness’ earlier testimony was allegedly inconsistent with later trial testimony.” The trial court found that Neal was not entitled to such an instruction where the witness made a statement prior to trial that was inconsistent with her trial testimony. The trial court was incorrect. See Ivery, 548 So.2d 887. We reverse that portion of the trial court’s order denying Neal’s claim and remand for the trial court to further consider the claim. If the trial court again summarily denies the claim, it shall attach those portions of the record upon which it relies.

In ground seven of the motion, the trial court failed to address Neal’s claim that counsel was ineffective for failing to call Hollis as a witness at trial.

In order to allege ineffective assistance of counsel for failing to call a witness, a movant must state the witness’s name, the substance of their testimony, and how the omission prejudiced the outcome of the trial. The facts surrounding the omission must show a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceedings would have been different.

McLoyd v. State, 768 So.2d 1159, 1160-61 (Fla. 2d DCA 2000) (citation omitted). In his motion, Neal alleged that Hollis would have testified that he (Hollis) and Tippins obtained Neal’s permission to use the tote bag in which the trafficking amount of cocaine was found; that Neal did not know of the existence of the cocaine; and that it was he (Hollis) who told McDaniels not to stop and who drove the car after the worn-. en got out. Neal further alleged that if Hollis had testified, the outcome of the trial would probably have been different with regard to the false imprisonment, the carjacking, and the armed trafficking counts. Neal also made the more tenuous allegation that the outcome probably would have been different with regard to the four counts of attempted first-degree murder of a police officer since the State’s theory of premeditation was based on Neal’s being a drug trafficker who would purposefully kill rather than give up his cocaine. We conclude that Neal has asserted a facially sufficient claim of ineffective assistance of counsel for failure to call a witness, and we remand for the trial court to consider it.

In his sixth claim in ground eight, Neal alleges that counsel was ineffective for failing to move for a judgment of acquittal on the ground that there was insufficient evidence to support the four convictions of attempted first-degree murder of a law enforcement officer. A claim that counsel was ineffective for failing to preserve a sufficiency of the evidence claim for appeal by way of an adequate motion for judgment of acquittal is a cognizable rule 3.850 claim. See Boykin v. State, 725 So.2d 1203 (Fla. 2d DCA 1999). Boykin holds that to properly allege such a claim, a movant should state sufficient facts to show that “[he] may very well have prevailed on a more artfully presented motion for acquittal based upon the evidence he alleges was presented against him at trial.” Id. at 1203. Where there is no showing that a motion for judgment of acquittal had a likelihood of success, a movant has not presented a facially sufficient claim of ineffectiveness of counsel. See Rogers v. State, 567 So.2d 483 (Fla. 1st DCA 1990).

In the present case, at trial, counsel filed a boilerplate motion for judgment of acquittal on all of the counts of which Neal was convicted. The basis of Neal’s claim is his allegation that there was insufficient evidence of a premeditated intent to kill and that the circumstantial evidence allowed for a theory that he was firing the gun to scare the officers in order to enable him to flee. Two of the victims were police officers sitting in a marked police cruiser. Neal alleged that the evidence showed that he fired at the cruiser from a distance of ten to fifteen feet, hitting only the tire and radiator of the car and not the windshield. Neal hit and seriously wounded two other officers who were responding to the location where McDaniels’ vehicle crashed into a parked school bus. These officers were outside their vehicle. Neal alleged that the evidence showed that he was holding the semi-automatic firearm at waist level when firing rather than sighting down the barrel. He also alleged that at trial the State introduced his statements to the police that he was firing to scare the officers so he could get away; that he did not intend to hurt anyone; and that he did not know he had hit the officers until later.

Premeditated first-degree murder is a specific intent crime. Penn v. State, 825 So.2d 456 (Fla. 2d DCA 2002), review denied, SC02-2090, 842 So.2d 845 (Fla. Mar. 25, 2003). To establish an attempt to commit a specific intent crime, the State must prove a specific intent to commit that crime and an overt act toward the commission of the crime. Holland v. State, 773 So.2d 1065 (Fla.2000) (quoting Rogers v. State, 660 So.2d 237, 241 (Fla.1995)). Regarding the crime of premeditated first-degree murder, the Florida Supreme Court has held:

Premeditation is more than a mere intent to kill: it is a fully formed purpose to kill. Premeditation may be proved by circumstantial evidence. However, premeditation sought to be proved by circumstantial evidence must be inconsistent with every other reasonable inference. If the State’s proof fails to exclude a reasonable hypothesis that the homicide occurred other than by premeditated design, a verdict of first-degree murder cannot be sustained.

Fisher v. State, 715 So.2d 950, 952 (Fla.1998) (citations omitted); see also Burttram v. State, 780 So.2d 224 (Fla. 2d DCA), review denied, 792 So.2d 1215 (Fla.2001).

In the present case, based on the allegations in Neal’s motion, any evidence that Neal had a premeditated intent to kill the victims was circumstantial. A confession or a statement of a defendant may be direct evidence of a premeditated intent to kill. See Pagan v. State, 830 So.2d 792 (Fla.2002). However, in the statements that Neal alleged were introduced into evidence, he disavowed a premeditated intent to MU. We conclude, therefore, that Neal presented a facially sufficient claim of ineffectiveness of counsel.

The trial court denied this claim, finding that it was procedurally barred because “[o]n direct appeal, Defendant raised the issue of whether there was insufficient evidence of premeditation.” The trial court, citing Thompson v. State, 759 So.2d 650, 653 (Fla.2000), further found that “allegations of ineffective assistance of counsel cannot be used to circumvent the rule that postconviction proceedings cannot serve as a second appeal.” The attachments to the trial- court’s order show that trial counsel’s stated basis for moving for a judgment of acquittal on the four counts of attempted premeditated first-degree murder of a law enforcement officer was that the State had not presented a prima facie case. In the answer brief on direct appeal, the State contended that any argument regarding the insufficiency of the evidence on the issue of premeditation was not preserved below and was therefore waived for purposes of appellate review. Furthermore, in affirming Neal’s convictions and sentences, this court concluded “that none of the eight issues raised on appeal require reversal because they are either without merit or were not preserved for review.” Neal, 711 So.2d at 1359.

In Boykin, 725 So.2d at 1203 (Fla. 2d DCA 1999), the defendant claimed that “trial counsel was ineffective for failing to file an adequate motion for judgment of acquittal at the close of the State’s case. In particular, he allege[d] that the evidence was insufficient to establish that he actually possessed a firearm during the commission of the robbery.” The trial court denied the claim, finding that the defendant was trying to raise matters in a rule 3.850 motion that should have been raised on direct appeal. This court stated:

It appears the trial court misunderstood that Boykin was required to argue the sufficiency of the evidence in his motion in order to establish he had suffered prejudice from counsel’s alleged deficiency. Rather than attempting to rehash grounds that should have been dealt with on appeal, BoyMn sets forth a facially sufficient claim for postconviction relief.

Id. The same is true in the present case. We therefore reverse the denial of this claim and remand with instructions to the trial court to consider it.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and CASANUEVA, JJ., Concur.

      . Trial counsel, pursuant to Florida Rule of Criminal Procedure 3.380(c), made a timely motion for judgment of acquittal on three of the counts within ten days of the receipt of the verdict. On the remainder of the counts, excluding the four counts of attempted first-degree murder of a law enforcement officer, a more articulate motion for judgment of acquittal would have had little likelihood of success.


text:
    In the Interest of Alexis N. BRINKER. Kathleen M. Reilly and Raymond J. Reilly, her husband, Appellants, v. Patrick M. Brinker, Appellee.
    No. 2D02-2622.
    District Court of Appeal of Florida, Second District.
    June 20, 2003.
    Rehearing Denied Aug. 14, 2003.
    Ernest S. Marshall, Bradenton, for Appellants.
    Susan Hartmann Swartz of Law Office of Stanley R. Swartz, Bradenton, for Ap-pellee.
   PER CURIAM.

Having reviewed the record in this cause, we conclude that there was a sufficient basis for the trial court to make an award of attorney’s fees pursuant to section 57.105, Florida Statutes (2001).

WHATLEY and VILLANTI, JJ„ Concur.

NORTHCUTT, J., Dissents.


text:
    Marcia M. BLANCO, Appellant, v. Guillermo I. NOVOA, Appellee.
    No. 3D03-1416.
    District Court of Appeal of Florida, Third District.
    June 25, 2003.

      Russo & Kavulich, and Rex Russo, Coral Gables, for appellant.
    Duarte, Ariz & Piedra, and George Pie-dra, and Giorgio L. Ramirez, for appellee.
    Before SCHWARTZ, C.J., and RAMIREZ, J„ and NESBITT, Senior Judge.
   PER CURIAM.

Marcia M. Blanco appeals from a non-final order granting appellee Guillermo I. Novoa’s motion to require Blanco to post accrued rent into the registry of the court. We reverse.

Blanco is Novoa’s niece. On August 31, 2000, they took joint title to a condominium located in Hialeah, Florida. Novoa purchased the property with his own funds. On September 15, 2000, Blanco and Novoa entered into an agreement whereby Blanco would take possession of the property and pay $740 per month to Novoa, as well as all condominium assessments and property taxes. The parties used a standard landlord-tenant lease form in which the monthly payments to Novoa were called “rent”, Blanco was called the “lessee” and Novoa the “lessor.” However, the agreement also contained a clause that obligated Novoa to sell the property and Blanco to purchase the property for $89,831.56 in five years. Blanco was in possession of the condominium and made payments from November 1, 2000 until October 1, 2002.

On July 2, 2002, a Quit Claim Deed was recorded which purportedly gave Blanco’s half interest in the condominium to Novoa. Blanco claims not to have signed the document. Blanco has not made any of the payments required by the agreement since November 1, 2002. On December 19, 2002, Blanco filed a complaint seeking to cancel the Quit Claim Deed, monetary damages for fraud in the execution of a Quit Claim Deed to real property, and specific performance of the contract for sale of the unit. Novoa counterclaimed for breach of contract and eviction in March, 2003. Novoa then filed a motion to require Blanco to post rent with the registry of the court or be defaulted on the counterclaim for eviction. The trial court granted the motion and ordered Blanco to deposit $5,180.00 into the court registry within fifteen days of the order or waive any defenses to the eviction. The deadline was twice extended to accommodate this appeal.

The trial court construed the agreement between Blanco and Novoa to be a lease and consequently applied the law governing landlords and tenants. For a tenant to contest an eviction action, any defense other than payment requires the tenant to deposit accrued rent and any rent which accrues during the pendency of the proceeding into the court registry. See § 88.60(2), Fla. Stat. (2003). The trial court erred by requiring Blanco to deposit payments into the court registry because Novoa and Blanco were not simply landlord and tenant, respectively, they shared an equal interest in the property. The agreement provided for monthly payments equal to ten percent interest with the payment of fees and taxes consistent with those a mortgagor would make. Blanco would buy out Novoa’s interest in the condominium at the end of five years with a final balloon payment.

The Quit Claim Deed, if genuine, would make them landlord and tenant. However, if it is a forgery, the two are joint tenants. To impose the obligation to pay rent into the registry of the court is to decide the validity of the Quit Claim Deed and provide the remedy before the case is properly adjudicated in court.

Under section 697.01, Florida Statutes (2003), “[a]ll conveyances, obligations conditioned or defeasible, bills of sale or other instruments of writing conveying or selling property ... for the purpose or with the intention of securing the payment of money ... shall be deemed and held mortgages .... ” In deciding whether a conveyance should be declared a mortgage under the statute “depends on the particular facts, and as the statute provides, is a question of the parties’ intent.” Valk v. J.E.M. Distrib., 700 So.2d 416, 419 (Fla. 2d DCA 1997). “[EJquity will look at and take into consideration all the facts and circumstances surrounding the transaction and will decree an instrument to be a deed or mortgage according to the real intentions of the parties.” Id. (alteration in original). The substance and not the form is what is critical. Here, the trial court erred by determining that the words “lease” and “rent” controlled when the parties clearly acted not as landlord and tenant, but rather as mortgagor and mortgagee. Thus, the remedy available to Novoa in this case is that of a foreclosure proceeding.

Reversed.


author: FLETCHER, Judge.

text:
    The STATE of Florida, Appellant, v. Alex EXPOSITO, Appellee.
    No. 3D02-2467.
    District Court of Appeal of Florida, Third District.
    June 25, 2003.

      Charles J. Crist, Jr., Attorney General, and Michael J. Neimand and Consuelo S. Maingot, Assistants Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellee.
    Before GODERICH, FLETCHER, and RAMIREZ, JJ.
   FLETCHER, Judge.

Alex Expósito was charged with one count of possession with intent to sell marijuana and one count of trafficking in marijuana. The State nol prossed the possession charge and the jury returned a verdict of guilty on the trafficking charge.

Prior to sentencing, Expósito filed a motion seeking either a new trial or a reduction of the trafficking charge. Expósito argued that the three year mandatory minimum of a sentence imposed for a trafficking conviction is illegal because it was enacted by Chapter 99-188, Laws of Florida, which statute the Second District Court of Appeal declared unconstitutional in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002). In response to the motion the trial court stated:

“Fifth District and the Second District declared Chapter 99 unconstitutional. This previous case followed that case law and ruled it unconstitutional. The court is waiting for the Third District to rule. However, under the concept, I’m bound by the other appellate courts’ opinion. The Third District has not spoken on this issue. Based on that, the Defendant’s motion to reduce the charges from Trafficking in Cannabis to Possession with Intent, a third degree felony, is well taken. The motion is granted.”

R. at 78.

Expósito challenges the State’s right to this appeal. Expósito argues that this court has no jurisdiction as section 924.07, Florida Statutes (2000) does not authorize an appeal by the State from a reduction of charge. Expósito relies on State v. Richars, 792 So.2d 570 (Fla. 4th DCA 2001). Therein, the Fourth District Court of Appeal held that section 924.07, Florida Statutes (2000) does not authorize an appeal from an order granting a motion to reduce a charge under rule 8.670, Florida Rules of Criminal Procedure.

We decline to follow the lead of Richars. In State v. Hankerson, 482 So.2d 1386 (Fla. 3d DCA 1986), this court in dealing with a pretrial order reducing a charge stated: “Analytically, an order reducing a charge set forth in the information or indictment to some lesser-included charge is, despite its label, an order dismissing the charge in the information.” Hankerson at 1387. As section 924.07 authorizes the State to appeal orders dismissing an indictment or information or any count therein, we conclude that we have jurisdiction over the State’s appeal. Further, we reinstate the original charge and conviction and certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002), and State v. Richars, 792 So.2d 570 (Fla. 4th DCA 2001).

Reversed and remanded.

      . In State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003), we found Chapter 99-188, Laws of Florida, to be constitutional.


text:
    Adriane OLIVER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1221.
    District Court of Appeal of Florida, Third District.
    June 25, 2003.
    Adriane Oliver, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, GODERICH and SHEVIN, JJ.
   PER CURIAM.

Affirmed on the authority of State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003)(en banc). Conflict certified with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002).


author: CANADY, Judge.

text:
    SKYWAY TRAP & SKEET CLUB, INC., Appellant, v. SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, a public corporation, Appellee.
    No. 2D02-3423.
    District Court of Appeal of Florida, Second District.
    July 11, 2003.
    Rehearing Denied Sept. 8, 2003.

      Robert E.Y. Kelley, Jr., and Marie A. Borland of Hill, Ward & Henderson, P.A., Tampa, for Appellant.
    Dominick J. Graziano, Tampa, and William S. Bilenky and Steve Rushing, Brooksville, for Appellee.
   CANADY, Judge.

Skyway Trap & Skeet Club, Inc., appeals a nonfinal order that permanently enjoins it from depositing expended shot from its shooting range on adjacent property owned by the Southwest Florida Water Management District. We reverse because we conclude that the permanent injunction was erroneously entered before the case was at issue, without a properly noticed trial, and constituted an impermissible contempt sanction.

Skyway’s shooting range property lies adjacent to the western boundary of District property in St. Petersburg known as the Sawgrass Lake Water Management Area. The District’s claims against Skyway arise from the circumstance that spent shot from trap and skeet shooting activities on Skyway’s range falls on a portion of Sawgrass. The area on which the spent shot falls consists of two parcels identified as parcel 113.5 and parcel 102. Parcel 113.5 forms the western boundary of Saw-grass. The District acquired parcel 113.5 from Skyway in a 1975 eminent domain action. Skyway, however, retained an easement on parcel 113.5 for an ammunition drop zone. Parcel 102 is a portion of the Sawgrass property adjacent to the east side of parcel 113.5. Parcel 102 was also acquired by the District in an eminent domain proceeding. Skyway, however, was not a party to that action. Skyway asserts that it has the right to deposit shot on the affected lands under its retained easement on parcel 113.5 and by virtue of a prescriptive easement on parcel 102. The District contends that the retained easement is unenforceable and that the prescriptive easement has never existed.

To properly explain the procedural posture of this case, it is necessary for us to discuss in detail the progress of the proceedings that led to the issuance of the order under review. Those proceedings began with the filing of a complaint by the District against Skyway on April 12, 2000. In that complaint, the District sought (1) damages for the alleged adverse environmental impact Skyway’s shooting range activities were having on Sawgrass parcel 118.5, (2) to quiet its title to parcel 113.5 by clearing the parcel of the encumbrance of Skyway’s easement, and (3) to permanently enjoin Skyway from depositing any shot on parcel 113.5. At the same time, the District filed a separate motion for a temporary injunction to enjoin “the discharge of any firearm at Skyway’s trap and skeet range such that the expended shot impacts [pjarcel [102].” It is noteworthy that the District’s complaint did not seek any relief with respect to parcel 102 and that the District’s motion for a temporary injunction sought relief only with respect to parcel 102.

On April 28, 2000, the trial court, by written order, granted the District’s motion for temporary injunctive relief with respect to parcel 102 “until such time as a final judgment issues [with respect to the causes asserted in the District’s complaint].” The order also directed that representatives of both parties “shall inspect ... collection sites on [p]arcel [102] before each weekend’s shooting and after to ensure compliance with this order.”

On May 9, 2000, Skyway filed an answer and affirmative defenses to the District’s complaint. On June 7, 2001, Skyway filed an amended responsive pleading asserting additional affirmative defenses, as well as counterclaims for (1) declaratory relief with respect to its alleged possession of a prescriptive easement on parcel 102, (2) additional compensation in the event the District prevails in its action to quiet title by extinguishing Skyway’s easement on parcel 113.5, and (3) compensation in the event that Skyway’s prescriptive easement on parcel 102 — if determined to exist — is extinguished.

On February 1, 2002, the District filed an emergency motion for contempt or, in the alternative, a motion to modify the temporary injunction by making it permanent. The District alleged that Skyway was in contempt of the April 2000 temporary injunction order because it was continuing to trespass on parcel 102 by permitting expended shot to land there. The District claimed that Skyway was also failing to participate in property inspections as required. On February 11, 2002, the District filed a notice to set a jury trial date on its complaint.

On April 2, 2002, the first part of a hearing on the District’s contempt motion was held. On May 14, 2002, Skyway moved to dissolve the temporary injunction on the basis of its claim to a prescriptive easement on parcel 102. That motion was to be heard on May 29, 2002, at the same evidentiary hearing scheduled for the conclusion of matters on the District’s contempt motion.

Ultimately, at the close of the May 29, 2002, contempt hearing, the trial court informed Skyway that there was not enough time to hear its motion to dissolve the temporary injunction. The trial court then directed the parties to submit written closing arguments and proposed orders on the District’s contempt motion. At one point during the contempt hearing, the District stipulated that it was not seeking the imposition of a fine for Skyway’s alleged contempt but was instead seeking a permanent injunction of all shooting at Sky-way’s range.

On June 3, 2002, Skyway filed a written objection to the District’s February 11, 2002, request for a jury trial date. Sky-way asserted that the case was not yet at issue and that there were other unresolved matters pending- — such as its motion to dissolve the temporary injunction — that could affect the District’s rights in the litigation.

On June 24, 2002, Skyway filed a memorandum in opposition to the District’s contempt motion arguing, among other things, that a permanent injunction could not be imposed as a contempt sanction. Skyway also argued that it was not in contempt of the April 2000 temporary injunction regarding parcel 102 because the District failed to prove that Skyway was intentionally trespassing on any of its property— particularly in light of evidence that it had undertaken remedial measures to prevent shot from falling on parcel 102.

On July 17, 2002, the trial court entered an order finding Skyway in contempt of the April 2000 temporary injunction. The court’s order directed Skyway to participate in weekly compliance inspections in accord with the April 2000 order and declared that “[t]he Temporary Injunction Order is hereby made permanent insofar as it prohibits Skyway from dropping spent shot on the District property” — that is, parcel 102. It is this order which is the subject of this interlocutory appeal.

On July 25, 2002, Skyway filed a motion for rehearing. It renewed all grounds for objection asserted in its June 24, 2002, memorandum. It also argued that a permanent injunction was improper because it ultimately disposed of causes that were disputed in the lawsuit and on which Sky-way had not yet had an opportunity to defend. Skyway further argued that it had not yet had an opportunity to present evidence on its counterclaims. On July 31, 2002, the trial court denied Skyway’s motion for rehearing without further hearing or explanation. On August 14, 2002, Sky-way filed a timely notice of appeal in this court.

On appeal, Skyway does not challenge the trial court’s finding of contempt but asserts that entry of permanent injunctive relief was improper. Skyway urges reversal on two primary grounds: first, that the trial court granted the District permanent relief without allowing Skyway to present its defenses or evidence on its counterclaims; and second, that the imposition of the permanent injunction was an improper contempt sanction. We agree with Sky-way that each of these grounds requires reversal of the order on appeal.

The merit of Skyway’s first argument for reversal turns on the application of the fundamental requirements of Florida Rule of Civil Procedure 1.440. “An action is at issue after any motions directed to the last pleading served have been disposed of.” Fla. R. Civ. P. 1.440(a). “If the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial.” Fla. R. Civ. P. 1.440(c). A court may enter a permanent injunction only after the case is at issue and the court has complied with the requirements of rule 1.440. Watkins v. Colonial Life & Ace. Ins. Co., 719 So.2d 934, 935 (Fla. 5th DCA 1998) (concluding that the trial court reversibly erred in entering a permanent injunction before the main cause was yet at issue where hearing resulting in issu-anee of permanent injunction was intended to determine only propriety of temporary injunction); Scarbrough v. Meeks, 582 So.2d 95, 96 (Fla. 1st DCA 1991) (holding that “trial court abused its discretion by prematurely entering [a] permanent injunction in violation of rule 1.440” when case was not yet at issue); Int’l Jai-Alai Players Ass’n v. Dania Jai-Alai Div. of the Aragon Group, Inc., 563 So.2d 1117 (Fla. 4th DCA 1990) (holding that action was not yet at issue and that it was thus error for trial court to hold a final hearing and issue permanent injunction while two motions were still pending — namely, appellant’s motion to dissolve temporary injunction and appellee’s motion for contempt and to modify temporary injunction); see also Seminole County v. River Capital, Inc., 725 So.2d 1233, 1234 (Fla. 5th DCA 1999) (holding that trial court erred in entering temporary injunction against county upon finding that adult entertainment establishment was operating legally and did not need a license, because such finding, “in effect, determined the issue relating to the [county’s complaint for permanent injunctive relief] without permitting the evidence to be fully developed or presented”); Fla. State Soc’y of Homeopathic Physicians v. Fla. Dep’t of Prof. Regulation, 487 So.2d 374 (Fla. 5th DCA 1986) (holding that trial court violated appellant’s due process rights by entering permanent injunction after partial hearing on temporary injunction and without final evidentiary hearing on ultimate complaint for permanent injunction).

The record here shows that the trial court erroneously entered a permanent injunction against Skyway before the case was at issue. Skyway’s motion to dissolve the temporary injunction based on its claim to a prescriptive easement on parcel 102 was still pending when the trial court granted the District permanent in-junctive relief. The case was therefore not at issue under rule 1.440(a). Skyway twice implored the trial court that the main cause was not yet at issue — once in its written objection to the District’s request for a trial date and once in a motion for rehearing of the trial court’s decision to enter a permanent injunction. Thus, Sky-way did not waive its right to a full and fair evidentiary hearing at which evidence from both parties relating to all the disputed issues could be fully developed and presented. Moreover, the record before us does not show that the trial court ever entered “an order fixing a date for trial” as required by rule 1.440(c). The trial court therefore violated Skyway’s due process rights by failing to comply with rule 1.440. This failure to comply with the basic requirements of rule 1.440 explains why we face the paradoxical circumstance of reviewing a nonfinal order that grants permanent injunctive relief.

The merit of Skyway’s second argument for reversal turns on the law defining the proper scope of sanctions imposed for civil contempt. Dismissals and default judgments are improper contempt sanctions. Whiteside v. Whiteside, 468 So.2d 407, 408 (Fla. 4th DCA 1985) (relying on this court’s decision in Clark v. Suncoast Peach Corp., 263 So.2d 247 (Fla. 2d DCA 1972)). “One may not be barred forever from protecting one’s life, liberty or property simply for being disobedient or contumacious.” Whiteside, 468 So.2d at 409. “Other adequate and more suitable forms of punishment, within constitutional limitations, are readily available to the court to ensure obedience to its order and to preserve the integrity of the judicial process.” Id. (citing Vines v. Vines, 357 So.2d 243 (Fla. 2d DCA 1978)). In the present case, the effect of the trial court’s order was tantamount to a default judgment — at least as to Skyway’s counterclaim for a prescriptive easement on parcel 102. The permanent injunction here was thus an improper contempt sanction, as a matter of law. Furthermore, the trial court imposed the improper contempt sanction without giving Skyway an opportunity to purge the contempt. It is impermissible to impose a civil contempt sanction without providing a means of purging the contempt. Parisi v. Broward County, 769 So.2d 359, 365 (Fla.2000).

Finally, we note an issue that has not been raised by Skyway. This issue arises from the fact that the complaint filed by the District does not seek any relief with respect to parcel 102 the parcel which is the subject of the relief granted in both the permanent injunction now under review and the previously entered temporary injunction. The record this court has been furnished does not show that the District has ever sought to amend its complaint against Skyway to seek permanent injunc-tive relief or any other relief with respect to parcel 102. Instead, the District has proceeded by first seeking a temporary injunction as to parcel 102 and then seeking to have that temporary injunction made permanent. The question of the validity of the temporary injunction is not before us in this interlocutory appeal. See Robinson v. Croker, 117 Fla. 582, 158 So. 123 (1934) (holding that appellate review of interlocutory order is limited to that order). We note, however, the trial court’s apparent lack of authority to issue a temporary injunction granting relief which is not predicated on a complaint seeking permanent relief. See Int’l Village Ass’n v. Schaaffee, 786 So.2d 656, 658 (Fla. 4th DCA 2001) (holding that it is inappropriate to issue a preliminary injunction “in the absence of a pending request for ultimate relief”); Connolly v. Connolly, 448 So.2d 641, 642 (Fla. 4th DCA 1984) (holding that “it was ... fundamental error ... for the court to grant an indefinite [temporary] injunction ... which ... was not ancillary to a[n] ... independent action”). It indeed appears anomalous for either temporary injunctive relief or permanent injunc-tive relief to be granted with respect to a tract of land where there is no complaint seeking ultimate relief with respect to that tract.

Because the interlocutory order under review was entered without compliance with rule 1.440 and imposed an impermissible contempt sanction, it is reversed and this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

SALCINES and KELLY, JJ., Concur.


author: CASANUEVA, Judge.

text:
    Louis Francis ROBERT, Jr., Appellant, v. DEPARTMENT OF INSURANCE, Appellee.
    No. 2D02-4443.
    District Court of Appeal of Florida, Second District.
    July 11, 2003.
    Rehearing Denied Aug. 14, 2003.

      Scot E. Samis of Abbey, Adams, Byel-ick, Kiernan, Mueller & Lancaster, L.L.P., St. Petersburg, for Appellant.
    Dean Andrews, of the Department of Insurance, Division of Legal Services, Tallahassee, for Appellee.
   CASANUEVA, Judge.

Louis Francis Robert, Jr., a licensed insurance agent, appeals the final order of the Department of Insurance (the Department) that suspended his license, contending that there was insufficient evidence to conclude that he committed violations of several sections of chapter 626, Florida Statutes (1999) and (2001), and Florida Administrative Code Rule 4-215.230. Mr. Robert also claims that the Department erred in calculating the period of suspension of his license, eighteen months. We find there was sufficient, competent evidence presented that Mr. Robert committed the violations with which he was charged. We affirm, therefore, that part of the Department’s final order that adopted the findings of violation in the recommended order of the administrative law judge (ALJ) and found that a period of suspension was required. However, we conclude the eighteen-month period of suspension was incorrectly imposed and reverse that part of the final order.

The two-count amended administrative complaint resulted from Mr. Robert’s professional transactions with two elderly female clients. In 1998, Mr. Robert was authorized by a policyholder to have the name of her deceased husband removed from an annuity. The ALJ found that Mr. Robert instead had the client sign two documents to obtain a new annuity policy and to claim death benefits. The death benefit proceeds were used to acquire the new annuity. The Department charged in count one that Mr. Robert had acted without authorization from this client and, in doing so, had engaged in acts proscribed by sections 626.611, .621, .9521, and .9541, and administrative rule 4-215.230.

In 2001, Mr. Robert presented forms for another elderly client’s signature. This client intended only to change the beneficiaries on her existing annuities. Instead, the existing annuities were surrendered and a new annuity was purchased. Count two of the Department’s administrative complaint charged similar violations of chapter 626 and the administrative code in reference to the unauthorized transaction with this client.

The ALJ found that the Department had proven the unauthorized transactions in both instances by clear and convincing evidence and that Mr. Robert either wilfully misrepresented or wilfully deceived the policyholders. Additionally, the ALJ concluded that these two transactions were the result of fraudulent or dishonest practices and recommended a license suspension of eighteen months. The Department rejected all of Mr. Robert’s exceptions to the ALJ’s recommended order and adopted the ALJ’s recommendations in its final order.

Florida Administrative Code Rule 4-231.040 sets forth the process to be followed in calculating the period of a license suspension as a sanction when a licensed insurance agent commits infractions of chapter 626. When, as in Mr. Robert’s case, multiple grounds for suspension exist, only the violation producing the highest penalty may be considered as the penalty for that count. See Fla. Admin. Code R. 4 — 231.040(l)(a). Among the various grounds for each count, Mr. Robert’s violation of section 626.611(9) carried the highest penalty, a nine-month license suspension. See Fla. Admin. Code R. 4-231.080. Thus, the Department calculated the penalty by adding together nine months for each count, resulting in a total penalty of eighteen months. See Fla. Admin. Code R. 4-231.040(2). Neither the ALJ nor the Department found any aggravating or mitigating circumstances, so, ultimately, the eighteen-month total penalty became the final penalty. See Fla. Admin. Code R. 4-231.040(3).

The ALJ found that in each count Mr. Robert violated section 626.611(9) which proscribes “[fraudulent or dishonest practices in the conduct of business under the license or appointment.” This section has been interpreted to require more than a solitary lapse or single act of misconduct. In Werner v. State, Department of Insurance, 689 So.2d 1211 (Fla. 1st DCA 1997), the court strictly construed section 626.611(9) because suspension of a professional or business license is penal in nature. Ms. Werner was found guilty of failing to disclose certain material features of an annuity contract in a transaction with one client. No other fraudulent or dishonest practice was found in that transaction or in any prior complaint. The court concluded that a single act of misconduct did not meet the statutory requirement of multiple practices; thus, the Department had not established a violation of section 626.611(9).

As in Werner, Mr. Robert’s transaction with the client in 1998, which formed the basis for count one, was a single episode of misconduct and should be punished as such. Therefore, the Department cannot impose a nine-month suspension for the solitary lapse in professional conduct giving rise to count one. The violation proven in count one with the next highest penalty was for section 626.611(5), which prohibits “[w]illful misrepresentation of any insurance policy or annuity contract or willful deception with regard to any such policy or contract, done either in person or by any form of dissemination of information or advertising.” This violation carries a penalty of six months’ license suspension. It is Mr. Robert’s second transaction, in 2001, which clearly constituted the multiple practices for the .purpose of section 626.611(9), and the nine-month penalty for count two was, thus, appropriately imposed.

In summary, we affirm that portion of the final order finding that Mr. Robert violated chapter 626 in his dealings with two clients, but reverse the penalty imposed and remand for reimposition of a correctly calculated license suspension.

Affirmed in part; reversed in part; and remanded.

ALTENBERND, C.J., and COVINGTON, J., concur.

      . Florida Administrative Code Rule 4-231.040, Calculating Penalty, provides:
      (1)Penalty Per Count.
      (a) The Department is authorized to find that multiple grounds exist under sections 626.611 and 626.621, Florida Statutes, for disciplinary action against the licensee based upon a single count in an administrative complaint based upon a single act of misconduct by a licensee. However, for the purpose of this rule chapter, only the violation specifying the highest stated penalty will be considered for that count. The highest stated penalty thus established for each count is referred to as the “penalty per count.”
      (b) The requirement for a single highest stated penalty for each count in an administrative complaint shall be applicable regardless of the number or nature of the violations established in a single count of an administrative complaint.
      (2) Total Penalty. Each penalty per count shall be added together and the sum shall be referred to as the “total penalty.”
      (3) Final Penalty. The final penalty which will be imposed against a licensee under these rules shall be the total penalty, as adjusted to take into consideration any aggravating or mitigating factors, provided however the Department shall convert the total penalty to an administrative fine and probation in the absence of a violation of section 626.611, Florida Statutes, if warranted upon the Department's consideration of the factors set forth in rule subsection 4-231.160(1).


text:
    Mathew L. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1287.
    District Court of Appeal of Florida, Second District.
    July 16, 2003.
    Rehearing Denied Aug. 26, 2003.
   CASANUEVA, Judge.

Mathew L. Smith challenges the summary denial of his motion for postconviction DNA testing filed pursuant to section 925.11(l)(a), Florida Statutes (2002), and Florida Rule of Criminal Procedure 3.853. We affirm.

Smith pleaded guilty to sexual battery. He now seeks DNA testing of certain evidence. Section 925.11(l)(a) provides that a defendant “who has been tried and found guilty of committing a crime” may petition the court for DNA testing. (Emphasis added.) A defendant who enters a plea of guilty or nolo contendere may not seek postconviction DNA testing based on the language of the statute. See Stewart v. State, 840 So.2d 438 (Fla. 5th DCA 2003); see also Reighn v. State, 834 So.2d 252 (Fla. 1st DCA 2002), cause dismissed by SC03-370, 845 So.2d 892 (Fla. May 6, 2003); accord Epps v. State, 835 So.2d 1217 (Fla. 4th DCA 2003). The Florida Supreme Court refused to extend the right to DNA testing to defendants who entered guilty or nolo contendere pleas. See Amendment to Fla. Rules of Criminal Procedure Creating Rule 3.853, 807 So.2d 633, 634-35 (Fla.2001). We therefore align ourselves with the First, Fourth, and Fifth Districts and conclude that a defendant is not entitled to seek DNA testing if he or she entered a plea of guilty or nolo conten-dere.

Affirmed.

DAVIS and KELLY, JJ., concur.