text:
    STATE of Florida, Appellant, v. Noemi GONZALEZ, Jose Antonio Santana, Jr., and Miguel Angel Gonzalez, Appellees.
    No. 2D03-1463.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellees.
   COVINGTON, Judge.

The State appeals the trial court’s orders granting Appellees’ motions to suppress cocaine and drug paraphernalia police found in their home. The State argues the trial court erred in ruling that the affidavit supporting the arrest warrant failed to allege facts sufficient to show probable cause and that the warrant was thus invalid. Because we conclude the trial court erred in ruling the affidavit was insufficient, we reverse.

On July 25, 2002, Corporal Charles Phil-lippi, with the City of Temple Terrace Police Department, filed an affidavit for search warrant of the residence located at 204 Park Ridge Avenue in Temple Terrace. The affidavit indicated that the premises were occupied and under the control of Noemi Gonzalez and Miguel Gonzalez. The affidavit set forth the following grounds as probable cause to issue the warrant:

On 7/25/2002, SPO Mike Hensel of the Temple Terrace police Department received a call to go to 102 Deer Park Ave. in reference to a drug call. Upon arrival officers Mike Hensel and Karen Walter met with complainant, Jaxira N. Colon DOB/09-19-85 (w-1) and Jessica Beatrice Vega 07-03-88(w-2). W-1 Colon, advised officers that on 07-24-02 She went into her parents room to use the computer to get on the internet. W-1 observed a small safe next to her parents bed and opened same which was unlocked. W-1 observed small jewelry bags, baggies with white powder and a baggie with vials of liquid. Some of the baggies have cocaine written on them. W-1 then told W-2/Vega what she saw and showed same to her. W-1 along with W-2 discussed what they were going to do. W-1 called police today, after checking to see that the items were still in the safe. Also in the safe, a weight scale was observed with the listed items.

A search warrant was issued and executed on July 25, 2002. The officers found a fire safe in the parents’ bedroom that contained baggies, a small scale, glass vials, and a cut straw, all of which contained cocaine residue. Also found inside the safe were cocaine test kits, a Virginia driver’s license with cocaine residue, a plastic baggie of white powder, and other miscellaneous items.

Appellees Noemi Gonzalez, Miguel Gonzalez, and Jose Santana were charged by-information with possession of cocaine and possession of drug paraphernalia. Noemi Gonzalez was also charged with obstructing an officer without violence. Appellees filed identical motions to suppress the drugs found in their home, contesting the validity of the search warrant. After a hearing, the trial court granted the motions to suppress and dismissed their cases.

For a warrant to issue, the issuing magistrate must find probable cause to believe that the contraband is presently in the residence. State v. Bernie, 472 So.2d 1243, 1246 (Fla. 2d DCA 1985).

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); see also Alabama v. White, 496 U.S. 325, 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

“The duty of the reviewing [trial] court is to ensure that the magistrate had a substantial basis for concluding that probable cause existed, and this determination must be made by examining the four corners of the affidavit.” Garcia v. State, 872 So.2d 326, 329 (Fla. 2d DCA 2004) (citing Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527). “[T]he resolution in marginal cases should be largely determined by the strong preference for searches conducted pursuant to a warrant.” State v. Stevenson, 707 So.2d 902, 903 (Fla. 2d DCA 1998). The trial court should not disturb the issuing magistrate’s determination absent a clear demonstration that she abused her discretion. State v. Price, 564 So.2d 1239, 1241 (Fla. 5th DCA 1990). “The trial court’s determination of the legal issue of probable cause is, however, subject to the de novo standard of review.” Pagan v. State, 830 So.2d 792, 806 (Fla.2002).

The issue here is whether the factual allegations in the affidavit, including the hearsay evidence provided by the informants’ calls, were sufficient for the magistrate who issued the warrant to find a fair probability that contraband would be found in the residence. An affidavit’s reliance on hearsay does not render it insufficient as long as there is a substantial basis for crediting the hearsay. Gates, 462 U.S. at 241-42, 103 S.Ct. 2317.

“Obviously any reliance upon factual allegations necessarily entails some degree of reliability upon the credibility of the source.... Nor does it indicate that each factual allegation which the affiant puts forth must be independently documented, or that each and every fact which contributed to his conclusions be spelled out in the complaint.... It simply requires that enough information be presented to the Commissioner to enable him to make the judgment that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal process.”

Id. at 231 n. 6, 103 S.Ct. 2317 (quoting Jaben v. United States, 381 U.S. 214, 224-25, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965)). “[Pjrobable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.” Gates, 462 U.S. at 232, 103 S.Ct. 2317.

“Informants’ tips doubtless come in many shapes and sizes from many different types of persons.” Id. A tip from an anonymous informant generally requires independent police corroboration in order to be considered credible. State v. Maynard, 788 So.2d 226, 230 (Fla.2001). Corroboration is not required, however, at the other end of the spectrum where the tip comes from a “ ‘citizen-informant,’ whose information is at the high end of the tip-reliability scale.” Id. at 230. See also Foy v. State, 717 So.2d 184, 185 (Fla. 5th DCA 1998), approved sub nom Maynard, 783 So.2d 226.

In Maynard, where the facts surrounding the tip were similar to the facts here, the supreme court held the caller was a citizen-informant and the tip was thus reliable without further corroboration. See 783 So.2d at 230. In that case, Maynard’s mother called police and reported that her son had a Mac-10 Uzi machine gun in his backpack. Id. at 227. He was arrested and charged with carrying a concealed firearm. Id. at 227. The supreme court held the telephone tip was sufficiently reliable to justify stopping Maynard because the mother qualified as a “ ‘citizen-informant,’ whose information is at the high end of the tip-reliability scale,” rather than an anonymous informant whose identity required corroboration. Id. at 230. The informant’s identity as Maynard’s mother was readily ascertainable because she gave her name and location, and her statement to the police that she was the suspect’s mother demonstrated the basis of her knowledge and veracity. Id.

Like the mother in Maynard, the daughters here qualify as citizen-informants. Their identities were readily ascertainable because they gave their names and location, and their statements to the police that they were the suspects’ daughters demonstrated the basis of their knowledge and veracity. And as the court observed in Maynard, we observe in this case that there is no indication the daughters were motivated by anything other than concern for the safety of their parents and others. See 783 So.2d at 230. Additionally here, the statement in the affidavit that one of the daughters called back after making sure the drugs were still present provided further indicia that it was likely police would find drugs there.

Reviewing de novo the trial court’s decision, we cannot say the magistrate abused her discretion in finding that, under the Gates totality of the circumstances standard, there was a fair probability that contraband would be found in the residence and in issuing the warrant. Accordingly, we hold the trial court erred in its legal determination that the warrant was invalid. We remand for further proceedings consistent with this opinion.

Reversed and remanded.

KELLY and WALLACE, JJ., Concur.


source: Caselaw Access Project

author: NORTHCUTT, Judge.

license: Public Domain

text:
    Theodore KONIOR, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2711.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2004.

      James Marion Moorman, Public Defender, and Paula C. Coffman, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

A jury convicted Theodore Konior of sexual battery, burglary of a dwelling with an assault or battery, and aggravated battery causing great bodily harm to a person over 65 years of age. He challenges his convictions on several grounds. We need not detail them all because the first error about which he complains entitles him to a new trial.

On the morning of Konior’s trial, his attorney and the prosecutor advised the trial judge, Harry M. Rapkin, that they had negotiated a plea agreement. Judge Rapkin rejected the agreement and, in an off-the-record comment, proclaimed that if Konior were found guilty of the charges he deserved a life sentence. Konior’s counsel orally moved to disqualify Judge Rapkin, but the judge summarily denied the motion and the trial proceeded. After the jury convicted him, Konior filed written motions for a new trial and to disqualify Judge Rapkin from sentencing him. The judge denied these motions. He sentenced Konior to life in prison on the burglary count, to thirty years’ imprisonment for the aggravated battery, consecutive to the life sentence, and to fifteen years’ imprisonment for the sexual battery, concurrent with the aggravated battery sentence.

We are constrained to reverse Konior’s convictions and sentences because Judge Rapkin was obliged to grant Konior’s first motion to disqualify him. On that occasion Judge Rapkin declared, prior to hearing any evidence, that if Konior was convicted he deserved a life sentence. Konior’s resulting fear that he had been prejudged and would not receive a fair trial before Judge Rapkin was reasonable and was a legally sufficient reason for Judge Rap-kin’s disqualification. See Martin v. State, 804 So.2d 360, 364 (Fla. 4th DCA 2001); Gonzalez v. Goldstein, 633 So.2d 1183, 1184 (Fla. 4th DCA 1994); Lewis v. State, 530 So.2d 449, 450 (Fla. 1st DCA 1988).

We reject the State’s suggestion that we should parse the judge’s remarks and hold that Konior’s fear was reasonable only as to sentencing. Florida’s courts have frequently held that a judge who has made statements indicating that he or she has predetermined the appropriate sentence is disqualified from presiding over the entire proceeding. See, e.g., Martin; Torres v. State, 697 So.2d 175, 176 (Fla. 4th DCA 1997); Hayes v. State, 686 So.2d 694, 695-96 (Fla. 4th DCA 1996). The State’s authority to the contrary, Lewis, 530 So.2d 449, is distinguishable. In that case, the judge made remarks similar to those at issue here just prior to jury selection. But the defendant waited until after his conviction before moving to disqualify the judge “with respect to the sentencing phase.” Id. at 449. When reversing only for resen-tencing, the First District noted that “the appellant does not assert error in the trial judge’s presiding at trial — only in the judge’s presiding at the sentencing proceeding.” Id. at 450. In contrast, Konior sought Judge Rapkin’s disqualification at the start of trial, immediately upon learning of the judge’s statement. Moreover, unlike Lewis, Konior contends that he was, in fact, thereafter denied a fair trial on several grounds which, as previously stated, we need not reach. We also disagree with the State’s assertion that Konior’s motion for disqualification was ineffective because, the State contends, it was not “promptly reduced to writing” as required by Florida Rule of Judicial Administration 2.160(e). See Stockstill v. Stockstill, 770 So.2d 191, 192 (Fla. 5th DCA 2000) (holding that written motion filed slightly more than ten days after trial at which party’s' counsel made unsuccessful oral motions to disqualify judge for her conduct during trial was timely under the rule).

We reverse Konior’s convictions and sentences and remand for a new trial before a different judge. Because Konior is to be retried, we must rule on his complaint about the jury instructions given at the first trial. We have examined the issue and determined that it is without merit.

Reversed and remanded for a new trial.

WHATLEY and COVINGTON, JJ„ concur.


author: COVINGTON, Judge.

text:
    HARLAN BAKERIES, INC., a foreign corporation, Appellant, v. Michelle SNOW, Appellee.
    No. 2D03-3834.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2004.
    Rehearing Denied Oct. 14, 2004.

      Angela C. Flowers of Kubicki Draper, Miami, for Appellant.
    Troy J. Iannucci of Latour & Associates, P.A., Tarpon Springs, for Appellee.
   COVINGTON, Judge.

An order granting a new trial on the grounds that the verdict was against the manifest weight of the evidence and that a curative instruction may have misled the jury forms the basis of this appeal. Because we find that the trial court erred in granting the new trial, we reverse.

Alleging negligence and breach of an implied warranty of fitness, Michelle Snow brought a lawsuit against Harlan Bakeries, Inc., and Einstein Bros. Bagels. Snow broke a tooth on a foreign object when she bit into a bagel with cream cheese bought at an Einstein store.

The bagels that are sold at Einstein are manufactured at Harlan’s facility. However, Einstein owns the equipment on which the bagels are manufactured, owns the process, and owns the ingredients. Einstein directly supplies Harlan with its prepared bagel base to which Harlan adds yeast, flour, sugar, and water purchased from different suppliers. Harlan prepares the bagels for cooking before they are frozen and shipped to Einstein. Einstein then thaws the bagels, bakes them, and adds specific ingredients such as cream cheese which may be requested by the customer.

Early in the litigation Harlan admitted that it manufactured the bagel for Einstein and that “the bagel ... contained a foreign substance.” The meaning of the admissions became a central focus at trial. Pri- or to the jury trial Harlan attempted to withdraw these admissions after a deposition of Domenique Kachucha, Snow’s former boyfriend, raised doubts about the existence of any foreign object.

Harlan submitted that in deposition Ka-chucha testified that after Snow bit into the bagel and cried out in pain, she pulled a combination of bagel, cream cheese, saliva, and blood out of her mouth. Kachucha also testified that he did not see the foreign object in the material Snow removed from her mouth and has not seen the foreign object at anytime thereafter. Harlan maintained that as a result of Kachu-cha’s testimony there was now a reasonable doubt as to whether Snow actually bit into a foreign object, particularly since there were only two witnesses to the incident — Snow and Kachucha. Despite this newly discovered evidence, the court refused to allow Harlan to withdraw its admissions.

Einstein settled with Snow shortly before trial, and thus the court dismissed Einstein from the lawsuit. Subsequently, the court allowed Harlan to place Einstein on the verdict form as a Fabre defendant. Harlan was also permitted to amend its answer to specifically allege Einstein’s negligence as an affirmative defense.

At trial, Harlan maintained that it did not admit that the object was in the bagel when it came from Harlan’s factory. Har-Ian’s director of manufacturing testified that he did not agree that the object was in the bagel when it left the plant. Harlan’s lawyer argued to the jury that “the bagel is the bagel with cream cheese” and that “somewhere in the product that [Snow] bought[,] the bagel with cream cheese[,] there was a foreign object.”

Neither party adduced evidence of the source of the foreign object, which was admitted into evidence. Snow called an expert who identified the foreign object as consisting primarily of plastic, but that glass was mixed in as part of the substance. Harlan’s expert testified that he inspected Harlan’s plant and could find no source for the foreign object. Throughout the course of the lawsuit Harlan asserted that Einstein was responsible for the injury or, alternatively, that Snow’s prior diagnosis of temporomandibular joint (TMJ) disease or several automobile accidents caused or aggravated her injury.

At the close of the evidence, the trial court granted Snow’s motion for a directed verdict as to Einstein, and Einstein was removed from the verdict form. Snow requested a curative instruction to clarify that Einstein was no longer part of the case in light of Harlan’s argument suggesting that certain evidence showed Einstein’s negligence. Harlan disagreed, contending that it was a jury matter and noting that there was no evidence of how the foreign object was introduced into the bagel. The court agreed with Snow and instructed the jury that it. had “directed a verdict as to any question of negligence on the part of Einstein. So that will not be something that you need to consider.” Snow made no objection to this instruction.

After hearing the evidence, the jury rendered a verdict finding that the bagel did not contain a foreign object when it left Harlan’s factory and that there was no negligence on the part of Harlan that was a legal cause of Snow’s injuries. Snow moved for a new trial, arguing that the verdict on the count of breach of implied warranty was against the manifest weight of the evidence and that the jury may have misconstrued the court’s curative instruction regarding the directed verdict on the negligence count against Einstein. After a hearing, the court granted a new trial on those grounds.

A trial court has broad discretion in deciding whether to override a jury verdict on the ground that it is contrary to the manifest weight of the evidence. However, the closer the issue comes to being purely legal in nature, the less discretion a trial court enjoys in ruling on a new trial motion. Tri-Pak Mach., Inc. v. Hartshorn, 644 So.2d 118, 119 (Fla. 2d DCA 1994). This is so because an error involving a purely legal question can be as accurately reviewed from an appellate record as from the trial judge’s bench. Id. The trial judge does not have a-superior vantage point for review of legal errors, as compared to other trial errors. Id. at 120. Finally, if the issue is not preserved before the posttrial hearing, the trial court’s power to grant a new trial is further restricted to those exceptional errors that are fundamental. Id.

Snow did not object to the instruction as drafted by the court. If an error is preserved, the legal standard the trial court uses in deciding a motion for new trial is whether the error is so pervasive or prejudicial that the injured party is denied the right to a fair trial. Hasegawa v. Anderson, 742 So.2d 504, 506 (Fla. 2d DCA 1999). If the error is not preserved, however, the trial court must additionally decide whether it is fundamental. Id. This requires a determination as to whether the error is so extreme that it could not have been corrected if the complaining party had objected and that it so damaged the fairness of the trial that it would undermine the public’s confidence in the judicial system. Id. Whether an error is fundamental is reviewed as a question of law. Id.

The court’s order stated that “[t]he jury could have easily misconstrued the curative instruction regarding the directed verdict involving the negligence of [Einstein] so as to think [Einstein] had already been found negligent.” It made no determination of fundamental error. In fact, the language of the order does not approach the standard that it could not have been corrected upon objection and that it so damaged the fairness of the trial so as to undermine the public’s confidence in the judicial system.

To compound matters, Snow specifically requested the curative instruction. Snow invited the very error of which she complains in the motion for new trial. See Schaffer v. Pulido, 492 So.2d 1157, 1157-58 (Fla. 3d DCA 1986). “ ‘A party cannot successfully complain about an error for which he or she is responsible or of rulings that he or she has invited the trial court to make.’ ” Fuller v. Palm Auto Plaza, Inc., 683 So.2d 654, 655 (Fla. 4th DCA 1996) (quoting Gupton v. Village Key & Saw Shop, 656 So.2d 475, 478 (Fla.1995)). Under the circumstances presented, the curative instruction is not a sufficient ground for a new trial. Not only was the error invited, but it simply does not approach the standard required for unpreserved, non-fundamental error.

The court’s alternative ground for a new trial was that the verdict was contrary to the manifest weight of the evidence in light of Harlan’s admission that the bagel contained a foreign substance. The broad discretion afforded the trial court in granting a new trial is based on the presumption that if the judge concludes that the verdict is against the manifest weight of the evidence, it is his duty to grant a new trial, and he should always do that if the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record. Cloud v. Fallis, 110 So.2d 669, 673 (Fla.1959). For a verdict to be against the manifest weight of the evidence, so as to warrant a new trial, the evidence must be clear, obvious, and indisputable; where there is conflicting evidence, the weight to be given that evidence is within the province of the jury. K-Mart Corp. v. Collins, 707 So.2d 753, 755 (Fla. 2d DCA 1998).

The jury’s verdict that the foreign object was not in the bagel at the time it left Harlan Bakeries is not inconsistent with Harlan’s admission. Rather, it reflects that the jury, after hearing a substantial amount of evidence, apparently made a finding that the foreign object was either incorporated in the bagel through the baking process at Einstein or in the cream cheese Einstein spread on the bagel. There was no direct evidence that the foreign object was in the bagel at the time it left the bakery. In fact, there was even some evidence that could support a finding that there was no foreign object at all.

The role of the trial judge in ruling on a motion for new trial is not to substitute his or her own verdict for that of the jury, but to avoid what, in the judge’s trained and experienced judgment, is an unjust verdict. Brown v. Estate of Stuckey, 749 So.2d 490, 495 (Fla.1999). In this case the import of the trial judge’s ruling is that there is but one view that can be had of the evidence — that Harlan’s admissions demanded a verdict for the plaintiff. Because it is clear from the record, in this circumstantial evidence case, that there was no direct evidence of when or how the foreign object was introduced into the bagel, the court’s ruling was an abuse of discretion. While we recognize the broad discretion that a trial court judge has in ruling on a motion for new trial, we nevertheless conclude that reasonable persons could not differ as to the propriety of granting this motion for new trial. Accordingly, we reverse the order granting a new trial.

Reversed.

SALCINES and VILLANTI, JJ., Concur.

      . Fabre v. Marin, 623 So.2d 1182 (Fla. 1993).


text:
    Wilma SMITH, individually and on behalf of all others similarly situated, Appellant, v. FOREMOST INSURANCE COMPANY, a foreign corporation; and American Federation Insurance Company, a Florida Corporation, Appellees.
    No. 2D03-286.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2004.
    James E. Felman and Katherine Earle Yanes of Kynes, Markman & Felman, P.A., Tampa, for Appellant.
    Steven G. Koeppel of Troy, Yeslow & Koeppel, P.A., Ft. Myers; and Marcy Levine Aldrich, Nancy A. Cooperthwaite, and Valerie B. Itkoff of Akerman Senterfitt, Miami, for Appellees.
   COVINGTON, Judge.

Wilma Smith appeals the trial court’s order granting summary judgment in favor of American Federation Insurance Company and its Florida subsidiary, Foremost Insurance Company, and denying Smith’s cross-motion for summary judgment. Because we conclude the trial court erred in ruling that Foremost’s premium service charges were not subject to part XVI of the Florida Insurance Code, we reverse the summary judgment in favor of Foremost and American Federation.

Smith purchased automobile insurance from Foremost Insurance Company. Rather than paying the entire annual premium at the policy’s inception, Smith elected to pay her premium through the “Flex-A-Bill” payment plan. This allowed her to pay the premium in installments for a $5 “service fee” to be included with each installment payment.

Smith, on behalf of herself and others similarly situated, alleged in her complaint that these fees violated the premium financing statutes of Florida Insurance Code parts XV and XVI, sections 627.826-.849 and 627.901-.904, Florida Statutes (1995), respectively. Smith alleged that Foremost assessed more than the statutes permitted for service charges or interest on premiums paid in installments. She sought a declaratory judgment and injunc-tive relief as well as statutory damages, pursuant to section 627.835, of twice the service fees paid.

Part XVI of the insurance code, which addresses premium financing by insurance companies and agents, provides, inter alia:

627.901 Premium financing by an insurance agent or agency.—
(1) A general lines agent may make reasonable service charges for financing insurance premiums on policies issued or business produced by such an agent or agency.... The service charge shall not exceed $1 per installment, or a $6 total service charge per year, for any premium balance of $120 or less. For any premium balance greater than $120 but not more than $220, the service charge shall not exceed $9 per year. The maximum service charge of $1 per installment for any premium balance greater than $220 shall not exceed $12 per year. In lieu of such service charges, an insurance agent or agency may charge a rate of interest not to exceed 18 percent simple interest per year on the unpaid balance.
(2) Every such agent or agency engaging in premium financing whose service charge or rate of interest is more than as provided in subsection (1) shall be subject to part XV of this chapter.
627.902 Premium financing by an insurer or subsidiary. — An insurer, a subsidiary of an insurer, or a corporation under substantially the same management or control as an authorized insurer or group of authorized insurers may finance property, casualty, surety, and marine insurance premiums on policies issued or business produced by such insurer or insurers; however, any such insurer, subsidiary, or corporation or group of insurers the service charge or rate of interest of which is substantially more than that provided in s. 627.901 shall be subject to part XV of this chapter.

Part XV regulates “premium finance companies,” defined as persons in the business, in whole or. in part, of entering into or acquiring premium finance agreements with insureds. § 627.826.

The trial court ruled, and appellees Foremost and American Federation maintain, that the fees charged to administer Smith’s installment premium payments were not subject to the premium financing statutes because they did not constitute-an “advancement of funds or credit.” The trial court’s order granting summary judgment added that even if the service fees were governed by the statutes, they did not exceed the maximum amounts allowed.

Section 627.901 of part XVI provides two options for premium financing by an insurance agent or agency: a general fines agent may charge either (1) a maximum service charge of $1 per installment or a total of $6-$12 per year depending on the amount of the premium balance or (2) “in lieu of such service charges, ... a rate of interest not to exceed 18 percent simple interest per year on the unpaid balance.” Section 627.902 allows an insurer or subsidiary such as American Federation or Foremost the same two options as long as such service charge or rate of interest is not “substantially more than that provided in s. 627.901.” If such charges are “substantially more” than that, the insurer or subsidiary is subject to part XV of the insurance code, which regulates insurance finance companies and requires department licensure and use of department-approved premium finance agreements. §§ 627.902, 627.826-.849.

In ruling that Foremost’s charges were not subject to the premium financing statutes because Foremost did not “advance any funds or credit to Smith,” the trial court’s order cited Capital National Financial Corp. v. Department of Insurance, 690 So.2d 1385, 1336 (Fla. 3d DCA 1997), and Gerlach v. Allstate Insurance Co., 338 F.Supp. 642, 647-49 (S.D.Fla.1972). These cases are distinguishable. Although Ger-lach dealt with an insurer that charged premium installment service fees, the issue decided in Gerlach was whether this arrangement constituted a “consumer credit transaction” within the meaning of the Truth in Lending Act, 15 U.S.C. § 1640(a). See 338 F.Supp. at 646.

Gerlach argued that such transactions fell within the scope of the Truth in Lending Act, rendering Allstate, as a creditor, subject to liability to debtor Gerlach for a $100 penalty and reasonable attorney’s fees for failing to disclose required information. Id. at 647. The Gerlach court dismissed the action, ruling that, considering the Act’s definitions of creditor and consumer credit, Allstate’s premium installment transactions were outside the scope of the Act because the insured was not contractually obligated to make premium payments. Id. at 648.

Gerlach, although distinguishable because it addressed an issue unrelated to the issues in this case, is helpful here in that the court points out the difference between the Gerlach-Allstate transaction, governed by part XVI, and a transaction between an insured and a premium financing company under a promissory note or similar agreement:

The transaction in this action is not to be confused with the premium financing transaction, where the insured becomes obligated to a broker, bank, the issuing company or other creditor to pay the premium, or an indebtedness for premiums, and is contractually obligated to make payments.... There, of course, the creditor-debtor relationship comes into existence between the insured and the party he is obligated to pay.

Id. at 647 (citation omitted). Similarly here, Smith’s transactions with insurer Foremost, which fall within part XVI, section 627.902 of the Florida Insurance Code, are not to be confused with an insured’s transaction with a premium financing company as defined by part XV.

Section 627.848(l)(e) of part XV sets forth the procedure to follow when a policy is cancelled due to an insured’s default in paying a premium financing company:

[T]he insurer shall promptly return the unpaid balance due under the finance contract, up to the gross amount available upon the cancellation of the policy, to the premium finance company and any remaining unearned premium to the agent or the insured, or both, for the benefit of the insured or insureds.

It is evident from this language that part XV contemplates a creditor/debtor relationship between the financing company and the insured, with the financing company advancing the entire premium to the insurer on behalf of the insured, who repays the financing company.

The trial court here also cited Capital National for its holding that the term “financing” in section 627.827 of part XV of the code “as it is used in that context is the advancement of money rather than the mere collection of funds.” 690 So.2d at 1336. This case is distinguishable because Foremost is not a “premium finance company,” as defined by section 627.827, in the business of “advancing” premium payments for insureds via premium finance agreements. Discussing the advancement of funds may very well be appropriate when applied to transactions conducted by premium financing companies, in which there are three parties: the insurance company, to which the premiums are advanced; the premium financing company, which advances the premiums and is repaid by the customer; and the customer. When the only two parties to the transaction are the insurer and the customer, however, there is no need for the insurer to “advance” funds to itself. While this does not involve the “advancement” of funds, it is “financing” as contemplated by part XVI, which specifically addresses insurers such as Foremost, to whom the insureds pay the premiums.

Insurance premiums are strictly regulated under Florida law. Dep’t of Ins. v. Dade County Consumer Advocate’s Office, 492 So.2d 1032, 1041-42 (Fla.1986). The only provisions of Florida law permitting an insurer to collect an additional amount from the insured when the premium is paid in installments are the premium financing statutes contained in parts XV and XVI. Foremost itself apparently considered its Flex-a-Bill plan to be “premium financing” subject to part XVI because it filed a service charge and interest rate plan with the Department of Insurance as required under section 627.904.

We conclude as a matter of law that premium financing statutes section 627.904 governed Foremost’s service fees. Therefore, we reverse the trial court’s ruling that they did not.

Foremost’s bills sent to Smith identified its charges as “service fees” rather than “interest” and did not identify the charges as representing interest on unpaid balances. The plain language of part XVI, section 627.901, as it read at the time of the transactions in this case, limited service fees for agents or agencies to $1 per installment and $12 total per year, or alternatively they can charge interest not to exceed 18 percent simple interest. If an agent or agency charges more than those limits, it becomes subject to part XV, which governs premium finance companies, and must comply with its requirements, such as licensing, department approval, record keeping, and limitations on charges. Insurers and subsidiaries such as Foremost also become subject to part XV, pursuant to part XVI, section 627.902, if the total service charge per year or interest rate “is substantially more than that provided in s. 627.901_”

The,record indicates Foremost charged Smith $5 per installment and $10, $20, and $50 total for various years on the Flex-a-Bill plan. In the years in which Foremost charged Smith $20 and $50, these amounts clearly exceeded the $12-per-year limit as service fees. We conclude that at least some of Foremost’s charges also exceeded 18 percent simple interest per year.

The legislative history of chapter 2002-252, Laws of Florida, which amended section 627.901, illustrates the proper calculation and billing of interest charges when premiums are financed by insurance agents, agencies, or companies. Fla. H.R. Comm, on Ins., CS/HB 1247 (2002) Staff Analysis (February 6, 2002) (on file with comm.). Committee analysis of house bill 1247 includes a Department of Insurance chart illustrating the maximum interest charges allowed, at 18 percent simple interest, for a $1000 premium on a hypothetical six-month policy with two months down payment ($333) and equal installments at months 3, 4, 5, and 6:

Id. at 3. Applying this method to the case at hand, Foremost charged Smith more than 18 percent simple interest for at least some of the individual installment payments each year. The charges for Smith’s $1058 premium on her 1995-1996 one-year policy, for example, were $5 each at the time of the down payment ($318.47) and three equal installments at months 3, 6, and 9:

The total $20 charged exceeds the $12 statutory annual threshold for service fees. Foremost, however, is arguing its charges were interest. As a total, the $20 does not exceed 18 percent annual interest on the $1058 premium. However, the $5 charge at the time of the down payment, before any interest could have accrued, and the $5 charge at the last installment, when the previous outstanding balance was $246.51, each exceeds 18 percent simple annual interest.* The trial court did not address whether these amounts were “substantially more than” the maximum 18 percent provided in section 627.901 for insurance agents or agencies. We therefore reverse the trial court’s ruling on summary judgment that Foremost never charged an amount that exceeded the statutory maximum.

We affirm the denial of Smith’s cross-motion for summary judgment. A question of material fact remains as to whether the service charges Foremost assessed to Smith and others similarly situated were “substantially more than that provided in s[eetion] 627.901,” which would subject Foremost to part XV of the code, see § 627.902, and penalties for any noncompliance. Summary judgment is inappropriate at this juncture, and we remand for further proceedings consistent with this opinion. See Carter v. Brown & Williamson Tobacco Corp., 778 So.2d 932, 936 (Fla.2000); Moore v. Morris, 475 So.2d 666, 668 (Fla.1985).

Reversed in part, affirmed in part, and remanded.

NORTHCUTT and DAVIS, JJ., Concur.

      . The legislature amended section 627.901, effective May 13, 2002, to read in pertinent part:
      (1) ... The service charge shall not exceed $3 per installment. The maximum service charge shall not exceed $36 per year. In lieu of such service charges, an insurance agent or agency, at the sole discretion of such agent or agency, may charge a rate of interest not to exceed 18 percent simple interest per year on:
      (a) The. unpaid balance; or
      (b) The average unpaid balance as billed over the term of the policy and subject to endorsement changes. The interest authorized by this paragraph may be billed in equal installments.
      The same amendment added the following to section 627.902:
      Notwithstanding any other provision of law, an insurer, a subsidiary of an insurer, or a corporation under substantially the same management or control as an authorized insurer or group of authorized insurers may charge one-half of the additional charge provided in s. 627.840 [which allows a $20 maximum "additional charge” per 12-month period], and the charges provided in s. 627.841. [late fees, attorney’s fees, and insufficient funds charges].
      Ch.2002-252, §§ 1-2, at 1821-22, Laws of Fla. We have not considered the amended statute here, however, because we conclude it is substantive rather than procedural and therefore not retroactive. See Merrill Lynch Trust Co. v. Alzheimer's Lifeliners Ass’n, 832 So.2d 948, 952 (Fla. 2d DCA 2002). Furthermore, the statute contains no clearly expressed legislative intent that it operate retroactively. See Thayer v. State, 335 So.2d 815, 817-18 (Fla.1976). We reject Smith's argument that the amendments merely clarify the prior language. Cf. Blackshears II Aluminum, Inc. v. Dep’t of Revenue, 641 So.2d 928, 929 (Fla. 5th DCA 1994) (comparing State ex rel. Szabo Food Serv., Inc. v. Dickinson, 286 So.2d 529 (Fla.1973) (holding amendment to sales and use tax law was intended to clarify rather than change statute and was thus retroactive), with Dep’t of Revenue v. Zuckerman-Vernon Corp., 354 So.2d 353 (Fla.1977) (holding statutory changes not retroactively applicable where amendment changed penalties for failure to pay taxes)).


author: WALLACE, Judge.

text:
    BANK ONE, NATIONAL ASSOCIATION, as Trustee, Appellant, v. Arleen BATRONIE and Gene Batronie, Appellees.
    No. 2D03-3832.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2004.

      Jeffrey S. Lapin and Marjorie T. Kret of Larson King, LLP, Miami, for Appellant.
    Louis K. Rosenbloum of Louis K. Ro-senbloum, P.A., Pensacola, for Appellees.
   WALLACE, Judge.

Bank One, National Association, challenges the order of the circuit court setting aside a final judgment of foreclosure and dismissing the action without prejudice. Because the motion seeking relief from the final judgment was filed more than one year after rendition of the judgment, the circuit court lacked jurisdiction to entertain the motion or to grant relief thereon. Accordingly, we reverse.

On April 16, 2002, the circuit court entered a summary final judgment of foreclosure in favor of Bank One and against Arleen and Gene Batronie (the Homeowners). The Homeowners did not appeal. More than a year later, on May 8, 2003, the Homeowners, acting pro se, filed a motion seeking to set aside the final judgment of foreclosure. The Homeowners contended that Bank One did not have a cause of action to foreclose on their property because they were not in default on the mortgage on the date Bank One filed its complaint. Although the Homeowners’ motion did not expressly reference a ground for relief under Florida Rule of Civil Procedure 1.540, they assert on appeal that their motion presented a color-able claim under rule 1.540(b)(3), which provides that a court may relieve a party from a final judgment for the reason of “fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.” A motion seeking relief for the reason specified by rule 1.540(b)(3) must be filed not more than one year after rendition of the final judgment. Fla. R. Civ. P. 1.540(b); Pruitt v. Brock, 437 So.2d 768, 773 (Fla. 1st DCA 1983). The Homeowners do not dispute that their motion was filed more than one year after the circuit court entered the final judgment of foreclosure.

Insofar as the record reveals, Bank One did not object to the untimeliness of the Homeowners’ motion until it filed a motion for reconsideration after the circuit court entered the order setting aside the final judgment. Before obtaining a ruling on its motion for reconsideration, Bank One invoked the jurisdiction of this court pursuant to Florida Rule of Appellate Procedure 9.130(a)(5) to review the challenged order. On appeal, the Homeowners contend that the untimeliness of their motion may not be a reason for this court to reverse the challenged order because Bank One failed to preserve and otherwise abandoned the issue of timeliness.

The Homeowners are correct that Bank One did not preserve the issue of timeliness. See S. Indus. Tire, Inc. v. Chicago Indus. Tire, Inc., 541 So.2d 790, 791 (Fla. 4th DCA 1989) (applying the principle of rule 9.020(h)(3) to a nonfinal order; deeming a party to have abandoned a petition for rehearing directed at a nonfi-nal order by filing a notice of appeal during pendency of the petition for rehearing). However, the jurisdictional nature of rule 1.540(b) allows the error to be raised for the first time on appeal.

After rendition of a final judgment, the trial court loses jurisdiction over the case except to enforce the judgment and except as provided by rule 1.540. Maresca v. Olivo, 819 So.2d 855, 857 (Fia. 5th DCA 2002); Francisco v. Victoria Marine Shipping, Inc., 486 So.2d 1386, 1389 (Fla. 3d DCA 1986). “[T]he one exception to the rule of absolute finality is rule 1.540, ‘which gives the court jurisdiction to relieve a party from the act of finality in a narrow range of circumstances.’ ” Bane v. Bane, 775 So.2d 938, 941 (Fla.2000) (quoting Miller v. Fortune Ins. Co., 484 So.2d 1221, 1223 (Fla.1986)). Among those circumstances applicable to this case is compliance with the time limit of rule 1.540(b)(3), which, like other jurisdictional time limits such as the time for filing a notice of appeal or a motion for a new trial, may not be extended for any reason. Fla. R. Civ. P. 1.090(b). Because the Homeowners’ motion was untimely filed, the circuit court lacked jurisdiction over the underlying foreclosure action permitting it to entertain a motion seeking to set aside the final judgment of foreclosure. See Hartley v. Andriuli 595 So.2d 311, 312 (Fla. 2d DCA 1992). Once beyond the reach of rule 1.540(b), the final judgment of foreclosure “passed into the unassailable realm of finality.” See Holm v. Demetree, 681 So.2d 868, 869 (Fla. 5th DCA 1996).

The lack of jurisdiction of the trial court “may be considered independently by the appellate court, even if the issue was never raised in the trial court.” Stone v. Stone, 873 So.2d 628, 630 n. 1 (Fla. 2d DCA 2004). A trial court’s lack of jurisdiction arising under rule 1.540(b) may be the reason for reversal even if the error is raised for the first time on appeal. See Mocegui v. Pub. Serv. Mut. Ins. Co., 821 So.2d 1189, 1191-92 (Fla. 3d DCA 2002) (holding that the trial court lacked jurisdiction to amend a six-year-old final judgment because, among other reasons, the time limit of rule 1.540 had expired, even though both parties believed the trial court had such jurisdiction when they each sought to amend the judgment); Wright v. Scott, 658 So.2d 1215, 1215 (Fla. 1st DCA 1995) (holding that the failure to comply with the jurisdictional time limit of rule 1.540(b) was “fundamental error which can be raised for the first time on appeal”). Therefore, because the circuit court lacked jurisdiction to entertain the motion seeking relief from the final judgment of foreclosure, we are compelled to reverse the order granting relief thereon. Our decision moots the parties’ arguments concerning the propriety of the challenged order on its merits.

Reversed.

CASANUEVA and COVINGTON, JJ., Concur.

      . Florida Rule of Civil Procedure 1.540(b) provides five grounds for relief from a final judgment, decree, order, or proceeding, the first three of which are subject to a one-year time limitation. We agree that only the ground specified by rule 1.540(b)(3) was arguably articulated in the Homeowners' motion.
      While a claim of intrinsic fraud must be brought under rule 1.540(b)(3), a claim of extrinsic fraud—also known as fraud upon the court—may be brought under the rule or may be brought at any time as an independent action challenging the final judgment. See generally Cerniglia v. Cerniglia, 679 So.2d 1160, 1163 (Fla.1996). The parties have not addressed the issue of fraud upon the court and we express no opinion thereon.

      . We reject, without comment, the Homeowners’ argument concerning the tolling of the rendition of the final judgment of foreclosure.


author:
NORTHCUTT, Judge.
      COVINGTON, Judge,

text:
    Milton DE LA CRUZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4050.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2004.

      James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

A jury found Milton De La Cruz guilty of trafficking in cocaine, possession of cocaine, and possession of paraphernalia. He challenges only the trafficking conviction, claiming that the State’s evidence did not prove he possessed a sufficient amount of cocaine to support that charge. We agree and reverse.

De La Cruz’s charges came as a result of law enforcement’s attempt to apprehend David Gonzalez on an outstanding felony warrant. Gonzalez’s distinctive Ford truck was seen parked outside De La Cruz’s residence in Sarasota County. Law enforcement officers from the Florida Department of Law Enforcement and the Sarasota Sheriffs Office converged in the area, and two Sheriffs deputies approached the home. As they knocked on the door, one of the deputies looked through a window and saw De La Cruz on a sofa in the living room. De La Cruz opened the door and allowed the deputies to come inside. Upon entering, the deputies heard a noise coming from the back of the house. They discovered Gonzalez in a bedroom.

At this point, De La Cruz signed a consent to search the home. He said he was the primary renter, although two other people were on the lease. He had lived there approximately five months and was in control of the residence. The other law enforcement officers in the area joined in the search. Several officers testified that De La Cruz appeared to have cocaine residue on his face and on his shirt. A white powdery substance and a rolled-up twenty dollar bill were in plain view on a table in the living room. A plastic baggie containing 2.95 grams of cocaine was found between the cushions on the couch where De La Cruz had been sitting. The officers also discovered a white envelope in a bedroom with residue they suspected was cocaine. Additionally, they discovered money, a digital scale, and a pipe inside a cabinet.

In the garage, law enforcement found a small hydraulic press used to form cocaine into blocks. They also ; found a suitcase that contained a picture of Gonzalez’s brother and clothing that appeared to fit Gonzalez. '

One detective searched the kitchen. A cabinet door was open six to eight inches and he noticed what appeared to be a block of soap, encased in plastic wrap, located behind some flour and pasta. . He testified that when he moved closer to the cabinet, “[t]he first thing I smelled was a strong smell, which is common with cocaine. It definitely didn’t smell like a bar of soap.” He moved the other contents of the cabinet aside and “again it looked to be like a bar of soap that was wrapped up, and that struck me as funny. So that coupled with the smell, I decided I would look at the object and I would pull it out.” When he began to unwrap the package, he “had a real good idea because of the smell that it wasn’t a bar of soap, and the consistency of it” was such that he thought it was “probably cocaine.” The contents turned out to be 165.36 grams of cocaine, pressed into a block that fit the dimensions of the hydraulic press discovered in the garage.

As a result of this discovery in the kitchen, the State charged De La Cruz with trafficking based on his actual or constructive possession of more than 28 grams but less than 200 grams of cocaine. See § 893.135(l)(b)(l), Fla. Stat. (2002). De La Cruz maintains the evidence was insufficient to show he actually or constructively possessed the block of cocaine. We agree.

Because De La Cruz was not in actual possession of the block, the State was required to prove he constructively possessed it. In order to do so, the State had to establish that De La Cruz knew the cocaine was in his presence. See Brown v. State, 428 So.2d 250, 252 (Fla.1983); Loyd v. State, 677 So.2d 76, 77 (Fla. 2d DCA 1996).

When the police arrived, the residence was not in De La Cruz’s exclusive possession. Gonzalez was inside the home, and officers found personal property that appeared to belong to Gonzalez in the garage. If the place where drugs are found is not in the accused’s exclusive possession, knowledge of the presence of and control over the drugs cannot be inferred. The State must provide independent proof of these elements. Loyd, 677 So.2d at 77; Green v. State, 667 So.2d 208, 211 (Fla. 2d DCA 1995).

The State argues that the block of cocaine was in plain view and that this fact is sufficient to establish De La Cruz’s knowledge and control. See, e.g., Brown, 428 So.2d at 252. We disagree with the State’s premise that the cocaine was in plain view. The block was inside a kitchen cabinet, partly concealed by ordinary kitchen provisions. The officer testified it looked like a bar of soap “all wrapped up” in plastic. No evidence established the contraband was visible through these layers of plastic. In fact, the officer testified that, even after moving the other cabinet contents aside, the package “still looked like a bar of soap.” As such, the State presented no evidence that the contraband was in plain view. See Chappell v. State, 457 So.2d 1138, 1134-35 (Fla. 1st DCA 1984) (holding that drugs in manilla envelope were not in plain view for purposes of a constructive possession analysis); see also Bradshaw v. State, 509 So.2d 1306, 1309 (Fla. 1st DCA 1987) (determining that drug paraphernalia contained in a nontransparent bottle was not in plain view in a constructive possession case).

The detective also testified that he could smell the cocaine as he approached the kitchen cabinet. We note that De La Cruz was not in the kitchen and no evidence established that the smell permeated other areas of the home. Furthermore, the detective candidly admitted that he only thought the object was cocaine based on the smell and the fact that it did not smell like soap. Even as he removed the layers of plastic, he only suspected the item was “probably cocaine.” These facts do not establish De La Cruz’s knowledge of the presence of the cocaine under any sort of “plain smell” theory.

The State offered no other evidence to connect De La Cruz to the cocaine in the kitchen. The police did not obtain fingerprints from the wrapping, De La Cruz never admitted the block was his, and none of his personal effects were found near the contraband. See Loyd, 677 So.2d at 77-78. The evidence that the block fit the cocaine press seemed to implicate Gonzalez more than De La Cruz — the press was found in the garage, near a suitcase that contained items connected to Gonzalez.

De La Cruz does not dispute that the State proved he possessed the cocaine found in the living room. But his knowledge of that contraband does not prove he knew about the cocaine in the kitchen. See Hill v. State, 873 So.2d 491, 493 (Fla. 1st DCA 2004).

The trial court should have granted De La Cruz’s motion for judgment of acquittal on the trafficking charge. Accordingly, we reverse the conviction for trafficking. We remand to the circuit court to enter a judgment of acquittal on that charge and to resentence De La Cruz on the remaining convictions for possession of cocaine and possession of paraphernalia.

Reversed.

SALCINES, J., Concurs.

COVINGTON, J., Dissents with opinion.

COVINGTON, Judge,

Dissenting.

I respectfully dissent. In my opinion, there was sufficient evidence presented at trial to support De La Cruz’s conviction for trafficking in cocaine. As the majority points out, the State was required to prove constructive possession since the contraband was not found in De La Cruz’s actual possession. Because De La Cruz was not in exclusive possession of the residence,

his knowledge of the presence of the contraband on the premises and his ability to maintain control over it will not be inferred but must be established by other proof. This proof may consist of circumstantial evidence from which a jury might properly infer that the accused had knowledge of the presence of the contraband and an ability to control it.

Brown v. State, 412 So.2d 420, 422 (Fla. 4th DCA 1982), aff'd, 428 So.2d 250 (Fla.1983).

Here, the evidence presented to the jury established that De La Cruz was the individual who gave police permission to enter the residence, and he was the individual who signed the consent to search form. Significantly, De La Cruz told police that he was in control of the residence, that he had been living there and renting, and that he was the primary renter for five or six months. Although De La Cruz had not signed the lease, he was listed as one of the tenants on the rental agreement.

Testimony revealed that a woman named Lilliana Cabrolis had signed the lease and that the other tenants would be Sandra Perez and De La Cruz. However, no women’s clothing was found in the residence when it was searched. Even though the residence had three bedrooms, De La Cruz’s room was the only bedroom in the home that had furniture in it. While the majority concludes that the evidence seems to implicate David Gonzalez more than De La Cruz, De La Cruz conceded to police officers that Gonzalez did not live in the residence. These facts are distinguishable from those in Hill, 873 So.2d 491, in which the defendant apparently did not live in the apartment where police found the drugs but was spending the night.

Hill is also distinguishable in that the large caches of cocaine found in Hill were hidden in the voids under dresser drawers. In contrast here, the block of cocaine was found in an open kitchen cabinet. Detective Beal testified that the block drew his attention and that the first thing he noticed when he got closer to it was a strong smell, which is common for cocaine.

The facts in People v. Miller, 33 Cal. App.3d 191, 195, 108 Cal.Rptr. 788 (1973), are analogous to the facts here. The offi-qer in Miller observed paper-wrapped kilo-shaped blocks or bricks in an open box and smelled a strong odor of marijuana. Id. The Miller court held that where police officers see a package with a unique shape common for drugs and notice a “notoriously distinctive and identifiable odor,” it can be deemed to be in plain view. Id.; see also Nelson v. State, 867 So.2d 534, 537 (Fla. 5th DCA 2004) (holding, “Just as evidence in the plain view of officers may be searched without a warrant, evidence in the plain smell may be detected without a warrant.”); Commonwealth v. Ciaramitaro, 51 Mass.App.Ct. 638, 747 N.E.2d 1253, 1259 (2001) (stating what an officer “sees, smells or hears” are “plain-view observations”)'.

I cannot say the trial court erred in concluding from these facts that De La Cruz had the ability to control the contraband. Thus, I would affirm the decision of the trial court.

      . Section 893.101(2), Florida Statutes (2002), was enacted on May 13, 2002, before the date of De La Cruz's offense. It states that "knowledge of the illicit nature of a controlled substance” is not an element of offenses charged under chapter 893. That statute does not affect our analysis, which is grounded on the fact that the State failed to prove De La Cruz knew of the presence of the cocaine.

      . The dissent relies on several cases discussing "plain view” in the context of a search and seizure analysis. See People v. Miller, 33 Cal.App.3d 191, 108 Cal.Rptr. 788 (1973); Nelson v. State, 867 So.2d 534 (Fla. 5th DCA 2004); Commonwealth v. Ciaramitaro, 51 Mass.App.Ct. 638, 747 N.E.2d 1253 (2001). We think that Chappell, 457 So.2d at 1134-35, and Bradshaw, 509 So.2d at 1309, which specifically address a "plain view” analysis in a constructive possession case, support our holding that the block of cocaine was not in De La Cruz's "plain view” for establishing that he knew of its presence. But even aside from that, under Florida law, we doubt that the testimony of the detective would support a finding that the cocaine was in his plain view for purposes of search and seizure. As our supreme court has held, a law enforcement officer may seize items in plain view if "the incriminating character of the evidence is immediately apparent” to the officer. Pagan v. State, 830 So.2d 792, 808 (Fla.2002). Here, the detective only thought the package might contain cocaine, and even after he removed the object from the cabinet and began to unwrap it, still only suspected it was "probably cocaine.” "[W]hen closer examination of an item observed in plain view is necessary to confirm its incriminating nature, its nature is not considered 'immediately apparent.’ ” Minter-Smith v. State, 864 So.2d 1141, 1144 (Fla. 1st DCA 2003).


text:
    Allen RASMUSSEN, Sr., Appellant, v. TIME INSURANCE CO. and Lewis and Nina Holcomb, Appellees.
    No. 2D03-4981.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2004.
    Alan D. Watson, St. Petersburg, for Appellant.
    Stacy D. Blank and Paul E. Parrish of Holland & Knight LLP, Tampa, for Appel-lees.
   NORTHCUTT, Judge.

Allen Rasmussen, Sr., appeals a partial final summary judgment in favor of Time Insurance Co., which was based on the circuit court’s conclusion that Rasmussen’s state-law claims were preempted by the federal Employee Retirement Income Security Act (ERISA). Rasmussen argues that ERISA does not apply. We agree and reverse.

Rasmussen was covered by a group medical policy through his employer, Cook & Nook Cabinets, which later became Rasmussen Inc. This was a small, family-owned business run by Rasmussen’s son and daughter-in-law. According to the deposition of Jo Ellen Rasmussen, the company’s secretary and treasurer, she and her husband wanted insurance for their family. They spoke with Lewis Holcomb, an insurance agent, and he arranged group coverage in Time Insurance Co.’s Signature II MET (Multiple Employers’ Trust). Participation in the group was open to permanent full-time employees who actively worked at least thirty hours a week at Cook & Nook.

The parties filed competing claims for summary judgment on the ERISA issue. While the insurance documents conflict with Cook & Nook’s practices, there are no disputed issues of fact pertinent to the ERISA issue. In deposition, Jo Ellen testified that she and her husband contacted Holcomb to obtain insurance for their family, and Holcomb told her that this policy was the best way to go about it. According to the Employer’s Administration Guide provided by Time, “All full-time employees must carry Life, AD & D [Accidental Death and Dismemberment], and if chosen by the employer, Disability coverage.” But according to Jo Ellen, participation was completely voluntary on the employees’ part. The Employer Participation Agreement and Application stated, “It is agreed that the employer will pay at least the required premium for the employees.” But Jo Ellen testified that each employee paid for his or her own coverage through payroll deductions, and she remitted the premiums with a single business check. She further testified that Holcomb told them he set up the policy the way they wanted and told them not to worry about certain things.

Jo Ellen also testified that she referred all questions about the insurance to the agent, Holcomb. When new employees started, she told them about the group policy. Jo Ellen did not explain the insurance benefits; she just told them to call Holcomb. If an employee wanted to participate, Holcomb would come to the business and obtain the requisite information. If employees had claims, she referred them to Holcomb.. If a participating employee decided to cancel coverage, she crossed out the employee’s name when she mailed the premium payment. Jo Ellen also testified that she never received any documents from Time for posting in the workplace, she did not recall receiving any correspondence from Time relating to employees, she did not recall ever being referred to as the administrator of the plan, and she never received money or reimbursement from Time. The ERISA statute and attendant rights are nowhere mentioned in the insurance documents.

The case takes a bit of a twist because Cook & Nook filed bankruptcy in February 1991 and closed its doors. According to the allegations of Rasmussen’s third-amended complaint, he informed Holcomb of this development, and Holcomb told him to pay his premiums by personal check. Around July, Rasmussen applied for an individual conversion health insurance policy. Time denied the application because Rasmussen was “too old.” Holcomb then advised Rasmussen to continue with the group policy until he was sixty-four-and-a-half years old, and Rasmussen continued to pay his premiums. Rasmussen was essentially a group of one because Jo Ellen and her husband could not afford the insurance after the company went bankrupt. In November and December, Rasmussen incurred medical bills in excess of $71,000 for a preapproved hospitalization. But Time refused to pay the insurance claims and retroactively cancelled Rasmussen’s health insurance.

In Rasmussen’s third-amended complaint, he alleged the following claims against Time: a count for declaratory relief, an alternative count for violation of ERISA, a count for equitable estoppel, and a count for respondeat superior tied to a negligence count against Holcomb. Rasmussen does not dispute that the counts for declaratory relief, equitable estoppel, and respondeat superior are preempted if ERISA controls the case, and he has not appealed the adverse judgment on the alternative count alleging a violation of ERISA. Time ultimately raised eighteen affirmative defenses. On cross motions for summary judgment, the circuit court ruled that the ERISA defense prevailed.

ERISA “is a comprehensive federal law governing employee benefits.” Thompson v. Am. Home Assurance Co., 95 F.3d 429, 434 (6th Cir.1996). The fundamental policy concerns at the heart of ERISA have been grouped into two broad, overlapping categories: the protection of employers, which is served by ERISA’s creation of a uniform regulatory system and the preemption of conflicting laws; and the protection of employees, which is served by ERISA’s provisions that “are intended to safeguard the financial integrity of employee benefit funds, to permit employee monitoring of earmarked assets, and to ensure that employer promises are kept.” New England Mut. Life Ins. Co. v. Baig, 166 F.3d 1, 3^4 (1st Cir.1999) (citation and internal quotation marks omitted); see also Letner v. Unum Life Ins. Co., 203 F.Supp.2d 1291, 1296 (N.D.Fla.2001) (“When ERISA was enacted in 1974, Congress’ intent was two fold — to provide protection for employees and at the same time encourage employers to voluntarily establish pension and benefit plans.”). “[T]he absence of employer involvement vitiates the necessity for ERISA safeguards.” Johnson v. Watts Regulator Co., 63 F.3d 1129, 1133 (1st Cir.1996).

With a few exceptions not relevant here, and briefly stated, ERISA applies to any “employee benefit plan” or “employee welfare benefit plan” established or maintained by an employer. Donovan v. Dillingham, 688 F.2d 1367, 1370 (11th Cir. 1982). Under 29 U.S.C. § 1002(1), an employee welfare benefit plan is defined as

any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services....

The Eleventh Circuit has parsed this definition to five requirements: “(1) a ‘plan, fund, or program’ (2) established or maintained (3) by an employer or by an employee organization, or by both, (4) for the purpose of providing medical [or other benefits] ... (6) to participants or their beneficiaries.” Donovan, 688 F.2d at 1371.

“ ‘Established or maintained’ appears twice in the definition of an employee welfare benefit plan: first, an employer ... must establish or maintain a plan, fund, or program, and, second, the plan, fund, or program must be established or maintained for specified purposes.” Donovan, 688 F.2d at 1372. “[T]he employer must have a certain intent — a purpose to provide benefits to its employees.” Hansen v. Cont’l Ins. Co., 940 F.2d 971, 977 (5th Cir.1991).

In this case, the employer at no time intended to provide benefits to its employees. Jo Ellen Rasmussen testified, without contradiction, that her family procured group insurance for themselves through their business and allowed their employees to insure themselves as they saw fit. “A mere purchase of insurance by an employer is not sufficient to establish a plan under ERISA.” New England Mut. Life Ins. Co., 166 F.3d at 4. “An insurance policy may provide the essentials for a plan [under ERISA], but holding an insurance policy to be a plan per se contradicts the spirit of legislative intent.” Letner, 203 F.Supp.2d at 1298 (distinguishing between the simple sale of an insurance product and the existence of an ERISA plan, which must satisfy the definition in both form and substance).

Because the uncontroverted testimony demonstrates that the employer never intended to provide benefits to its employees, we conclude that the circuit court erred in finding that the employer established or maintained an ERISA plan and thus erred in holding that ERISA preempted Rasmussen’s state-law claims. We make no comment on either the validity of his claims or the merits of Time’s remaining affirmative defenses.

Reversed and remanded for further proceedings.

SALCINES and COVINGTON, JJ., Concur.


text:
    In the Interest of B.G. and B.G., children. B.G., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D03-5607.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2004.
    Catherine L. Combee, Bartow, for appellant.
    Douglas B. Sherman, Bartow, for appel-lee.
   WALLACE, Judge.

B.G., the father, challenges the trial court’s order granting the Department of Children and Family Services’ (DCF) motion to enforce the parties’ stipulated plea agreement and the resulting final order of adjudication of dependency as to his minor children, B.G. and B.G. Because the trial court failed to determine that B.G.’s consent to a finding of dependency was given voluntarily and with a full understanding of the possible consequences of the consent, we reverse.

On July 15, 2003, DCF filed a Petition Alleging Dependency against B.G., which alleged that B.G. had failed to protect his children from the physical and mental abuse of their stepmother, J.G. On September 17, 2003, B.G. and DCF participated in a mediation conference. At the conclusion of the mediation, the parties apparently reached an agreement and signed a stipulation, which included a provision requiring that the children have no contact with their stepmother. Shortly thereafter, B.G.’s attorney notified DCF that B.G. wanted to withdraw from the agreement because of the impact that it would have on his marriage to J.G. On October 3, 2003, DCF filed a motion to enforce the stipulated plea agreement.

On October 10, 2003, the trial court held a hearing on DCF’s motion. DCF argued that B.G. should not be allowed to withdraw from the agreement because DCF had already cancelled the subpoenas of the witnesses it had intended to present at the dependency hearing and thus DCF was prejudiced. B.G.’s counsel acknowledged that DCF had cancelled the subpoenas and informed the court that B.G. would agree to a continuance of the dependency hearing to eliminate any prejudice to DCF. B.G. told the court that he did not know when he signed the stipulation that he would not be allowed to see his wife, as was explained by a DCF worker after the stipulation was signed. The trial court tried to explain to B.G. that only the children were prevented from having contact with the stepmother. However, because the children were going to remain in B.G.’s custody as part of the stipulated agreement, B.G. was understandably confused about how he could maintain a relationship with J.G. Ultimately, the court granted DCF’s motion to enforce the stipulated agreement. On October 30, 2003, the trial court entered an order finding the children dependent and finding that B.G. freely, knowingly, and voluntarily consented to a finding of dependency.

Florida Rule of Juvenile Procedure 8.325(c) requires the trial court to make specific findings before accepting a consent to dependency. This rule states:

The court shall determine that any admission or consent to a finding of dependency is made voluntarily and with a full understanding of the nature of the allegations and the possible consequences of such admission or consent, and that the parent has been advised of the right to be represented by counsel. The court shall incorporate these findings into its order in addition to findings of fact specifying the act or acts causing dependency, by whom committed, and facts upon which the findings are based.

Fla. R. Juv. P. 8.325(c). This court and others have reversed adjudications of dependency based on consent when the trial court has failed to make the required findings. See In re I.D.M. 779 So.2d 526, 527 (Fla. 2d DCA 2000) (reversing the adjudication of dependency after finding that it was incumbent upon the trial court to question the mother as to whether she understood the nature of the allegations against her or the possible consequences of her consent to the dependency adjudication, despite the fact that she was represented by counsel); C.S. v. Dep’t of Children & Families, 777 So.2d 1118 (Fla. 4th DCA 2001) (reversing an adjudication of dependency where the mother was represented by counsel but the trial court made no inquiry as to the voluntariness of the mother’s plea, her understanding of the allegations, or the consequences of her consent); In re C.M., 632 So.2d 1093 (Fla. 1st DCA 1994) (stating that “[t]he mother’s mere presence at the disposition hearing did not conclusively establish that the earlier stipulation was knowing and voluntary, nor did it relieve the trial court of its obligation to follow the clear dictates of [rule 8.325(c) ]”).

In this case, the trial court never questioned B.G. as to whether (1) his consent was voluntary or (2) he knew the nature of the allegations against him or the possible consequences of his consent to the dependency adjudication. Furthermore, the transcript of the hearing indicates that B.G. still did not understand the consequences of his consent at the end of the hearing. The existence of the mediated agreement did not conclusively establish that B.G.’s consent to the dependency adjudication was knowing and voluntary, nor did it relieve the trial court of its obligations to make these determinations as required by rule 8.325(c). Because the trial court failed to follow the requirements of rule 8.325(c) in accepting B.G.’s consent, we reverse the order enforcing the stipulated agreement and the order adjudicating the minor children dependent, and we remand this case for further proceedings consistent with this opinion.

Reversed and remanded.

CASANUEVA and COVINGTON, JJ., Concur.