author: TAYLOR, J.

text:
    Michael TURNER, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-232.
    District Court of Appeal of Florida, Fourth District.
    Aug. 2, 2003.

      Patrick J. Curry, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Consuelo Maingot, Assistant Attorney General, Fort Lauderdale, for appellee.
   TAYLOR, J.

Appellant was convicted of possession of a firearm by a convicted felon. We reverse his conviction and remand for a new trial because the trial court infringed upon appellant’s right to remain silent by threatening a mistrial if he failed to testify to support comments made by defense counsel in opening statement.

After stopping appellant for speeding and placing him in custody for driving with a suspended license, the arresting officer conducted an inventory search of the car and found a firearm contained in a black pouch on the front seat floor board. Appellant was charged with possession of a firearm by a convicted felon and driving without a valid driver’s license.

At the beginning of trial, the court granted the state’s motion in limine to exclude testimony from the arresting officer that he learned through dispatch that appellant was not the owner of the car. The court ruled that the dispatch was hearsay and inadmissible. During opening statements, defense counsel told the jury that “[t]he evidence that will be presented to you will show that the car was not [appellant’s].” The state objected. Although the court overruled the state’s objection, defense counsel modified her remarks, telling the jury instead that there would be no evidence presented that the car belonged to appellant.

After opening statements, the trial court excused the jury and advised defense counsel that, based upon her opening statements, the court assumed appellant would be testifying. When defense counsel responded that appellant was planning on testifying, but that he could change his mind, the following discussion ensued:

THE COURT: The problem I have now is, as an impartial arbiter, that you made a statement to this jury that unless you put your client on the stand, you’ve violated this court’s order, and you’ve sandbagged the state as a result of that. [DEFENSE COUNSEL]: But, Your Honor, I’m entitled to ask Officer Saint-sauveur if he has any reliable evidence to suggest that that car [is] owned by Mr. Turner.
THE COURT: It would be based on hearsay, and that is violative of this court’s order. Now, at this point in time, if you tell me that you don’t have any intention of calling your client to testify, I’m inclined to grant a mistrial based on that manifest injustice.

The court reminded defense counsel of its order in limine precluding any reference to the dispatch information that the car was not registered to appellant. The court further advised defense counsel that she would be in violation of its ruling unless she called appellant to testify that the car did not belong to him. Defense counsel explained that she clarified her opening remarks, telling the jury only that the state was not going to present any evidence that the car was registered to appellant. Nevertheless, the court announced that it would entertain a state motion for mistrial based on her opening statement if appellant did not testify.

At the close of the state’s case, the trial court inquired about appellant’s decision to testify. Defense counsel explained that appellant did not want to testify and risk exposure of his nine prior felony convictions. He did not, however, want the case to end in a mistrial because he was opposed to having to face a third trial. Personally addressing the court, appellant complained that he felt he was being unfairly forced to choose between his right to continue with the trial and his right not to testify. The court responded as follows:

What your lawyer could have done, without violating a direct order of this court, is by waiting until final argument and saying that you heard no evidence that this vehicle belonged to Mr. Turner, but she didn’t elect to do it the appropriate way. She elected to violate this court’s order. Now that was the reason for the ruling. I want you to understand that.

Appellant took the stand. He testified that he did not own the car, that he borrowed it the night before his arrest, and that he did not know that a gun was in the car. On cross-examination, the state questioned appellant regarding his numerous prior convictions. After lengthy jury deliberations, during which the jury requested to have appellant’s testimony read back, and after an Allen charge, the jury returned a verdict of guilty.

Appellant argues that the trial court erred in threatening a mistrial due to defense counsel’s remarks during opening statement. He contends that the judge’s threat to end the trial forced him to testify. We agree with appellant that the circumstances in this case did not warrant a mistrial. Declaring a mistrial over the objection of the defendant is appropriate only when “manifest necessity” for the mistrial has been shown. See Thomason v. State, 620 So.2d 1234, 1237 (Fla.1993). The double jeopardy clause, in addition to protecting an accused from being retried after an acquittal, gives a defendant a “valued right” to have his trial completed by a particular jury. Id. (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949)). “[T]he defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial.” United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971).

As the supreme court explained in Thomason:

Because the right not to be subjected to double jeopardy is so important and because it is frustrated when a trial ends before a verdict is reached, the State bears a heavy burden in justifying a mistrial over the objection of a defendant. Doubt about whether the mistrial is appropriate is resolved ‘in favor of the liberty of the citizen.’ (Citations omitted).

The doctrine of manifest necessity requires the trial court to explore all possible alternatives before declaring a mistrial over a defendant’s objection. Thomason, 620 So.2d at 1239. Here, the record indicates that the trial court did not consider and reject all possible alternatives before sua sponte announcing it would declare a mistrial due to defense counsel’s comments during opening statement. The record shows that the trial court considered only one alternative — that appellant testify. This decision forced appellant to choose between testifying against his will and having a mistrial declared. As a defendant has an absolute right not to testify at his own trial unless he freely chooses to do so, this was not a reasonable alternative.

The trial court apparently believed that defense counsel violated its pretrial order, which precluded eliciting testimony about the dispatch report’s registration information, by telling the jury in opening statement that the state would not be producing any evidence of the car’s ownership. Even assuming, arguendo, that defense counsel’s comments violated the order in limine, there were other alternatives available to the court for redressing the violation other than threatening a mistrial. For example, defense counsel’s comments during opening statements, if improper, could have been corrected by sustaining the state’s objection and giving a curative instruction. See Butler v. State, 728 So.2d 286 (Fla. 3d DCA 1999)(holding that a mistrial was not warranted when the trial court sustained the defendant’s objection to the prosecutor’s remarks during opening statements and thereafter gave a curative instruction to the jury). In any event, the record does not demonstrate that the trial court fully considered and evaluated the alternatives to a mistrial.

Appellant expressed his desire to continue the trial and made it clear that he was testifying only because the court indicated it would declare a mistrial if he did not. Here, where there were no circumstances of manifest necessity justifying declaration of a mistrial, appellant was unfairly forced to choose between two equally important constitutional rights. As a result, appellant was denied a fair trial. Accordingly, we reverse appellant’s conviction and remand for a new trial.

REVERSED and REMANDED.

GUNTHER and KLEIN, JJ., concur.

      . Appellant’s first trial ended in a mistrial when the jury was unable to reach a unanimous verdict on the felony charge.

      . Interestingly, as noted above, the court suggested that defense counsel could properly make the same remarks as to lack of evidence during her closing argument, without violating its pre-trial order.


source: Caselaw Access Project

author: POLSTON, J.

license: Public Domain

text:
    CITY OF JACKSONVILLE, Petitioner, v. Susan RODRIGUEZ, as Personal Representative of Robert Rodriguez, Deceased, Respondent.
    No. 1D03-0106.
    District Court of Appeal of Florida, First District.
    Aug. 6, 2003.

      Howard M. Maltz, Assistant General Counsel, Office of the General Counsel for the City of Jacksonville, Jacksonville, Petitioner.
    Robert B. Guild, Floyd L. Matthews, Jr., of Spohrer, Wilmer, Maxwell & Matthews, Jacksonville, Respondent.
   POLSTON, J.

Respondent Susan Rodriguez filed a medical negligence claim against the petitioner City of Jacksonville, alleging in her complaint that the City and two of its paramedics in the Fire and Rescue Department (JFRD) were negligent when the paramedics responded to Robert Rodriguez’s complaint of chest pain at his residence, causing his subsequent death. The City denies it was negligent.

During pretrial discovery, the City filed a motion for protective order seeking to prohibit Respondent from forcing Captain Murray Kramer, a JFRD employee, to provide his opinions at deposition regarding whether the two paramedics who treated the decedent during the Emergency Medical Services (EMS) response at issue in this case, acted negligently or outside the applicable standard of care for paramedics, or breached the patient treatment protocols of the JFRD. The City asserted that because Captain Kramer had not been named as an expert who would testify at trial and he has no first hand knowledge of the facts giving rise to this action, such inquiry of his expert opinions is prohibited and would impermissibly invade the City’s work product privilege.

The City also sought to prohibit as irrelevant, and beyond the scope of discovery, Respondent’s inquiry of Captain Kramer’s knowledge regarding an alleged breach of patient confidentiality by two other JFRD employees who did not treat the decedent during the EMS call at issue and who had subsequently mishandled the EMS report pertaining to the decedent.

In support of its Motion for Protective Order, the City filed the affidavit of Captain Kramer. The affidavit stated in relevant part:

5. Affiant was not involved as Quality Assurance Officer, or in any other official capacity, in reviewing the response of Jacksonville Fire & Rescue to Robert Rodriguez on October 31, 1999 during the EMS response that is the subject matter of the above-styled case in determining whether or not the care rendered by paramedics Robert Lane and Jesse Brown was or was not within the standard of care for paramedics and/or in compliance with Jacksonville Fire & Rescue’s Standard Operating Procedures or Protocols. Affiant’s only involvement as Quality Assurance Officer involved issues surrounding a potential breach of patient confidentiality, by two members, Phillip Nadeau and Stephen Grant, by removing the EMS report pertaining to Mr. Rodriguez’s treatment. Mr. Nadeau and Mr. Grant had no contact with the patient Mr. Rodriguez during the EMS response on October 31, 1999 which is the subject matter of the above-styled case.
6. Affiant has consulted with counsel for the City in this matter regarding EMS care issues; however, Affiant has been advised that he is not intended to be called as an expert witness in those or any areas.

During the motion hearing, the trial court stated that the inquiry into Captain Kramer’s opinion regarding the paramedics’ standard of care and compliance with JFRD patient treatment protocol did not call for expert testimony. The trial court denied the City’s motion for protective order, ruling that Captain Kramer’s testimony is relevant, he has knowledge of this particular incident gained from his review of various documents, and that the City cannot make him a non-testifying consulting expert under the circumstances of this case so that the work product privilege does not apply or the privilege has been waived. We grant the City’s petition in part and deny it in part.

I.

It is well established that, in order to establish entitlement to certiorari relief, the Petitioner must demonstrate both that the order under review departs from the essential requirements of law and that the order will cause irreparable harm which cannot be remedied on plenary appeal. See Fla. R.App. P. 9.030(b)(2)(A); Belair v. Drew, 770 So.2d 1164, 1166 (Fla.2000); Charlotte County v. General Development Utilities, Inc., 653 So.2d 1081, 1084 (Fla. 1st DCA 1995); State v. Lozano, 616 So.2d 73, 75 (Fla. 1st DCA 1993)(stating that “the time, trouble, and expense of an unnecessary trial are not considered ‘irreparable injury’ for these purposes”).

First, we agree with the City that Captain Kramer’s opinion regarding the paramedics’ standard of care and compliance with JFRD patient treatment protocol requires “special knowledge or skill about the subject” that he is called to testify on. A lay person without specialized training, knowledge, or skill cannot render opinions as to whether a healthcare professional breached an applicable standard of care or failed to follow medical protocol. Accordingly, that solicited testimony is expert opinion. See Fla. R. Civ. P. 1.390(a)(defining expert witness, including one possessing special knowledge or skill about the subject upon which called to testify); section 90.702, Fla. Stat. (2002)(stating that a witness is qualified as an expert by knowledge, skill, experience, training, or education). Although Captain Kramer is an employee of the City, he may still be considered an expert. See Dunn v. Sears, Roebuck & Co., 639 F.2d 1171, 1174 (5th Cir.1981).

Even if an expert witness has relevant knowledge and opinions, the adverse party is limited in its ability to discover them under the general work product rule. See Charles W. Ehrhardt, Florida Evidence § 502.9 at 348 (2002 ed.). Discovery from experts not expected to be called as a witness at trial are not subject to discovery except as provided by Fla. R. Civ. P. 1.360(b)(relating to examination of persons) or “upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.” Fla. R. Civ. P. 1.280(b)(4)(B). Because Captain Kramer is not expected to be called as a witness at trial, and the Respondent has not made a showing of exceptional circumstances, the trial court erred by denying the City’s motion for protective order relating to his expert testimony. As stated in 8 C. Wright, A. Miller, & R. Marcus, Federal Practice and Procedure § 2033 at 464 n. 23 (1994):

A regularly employed expert may acquire information and form opinions not in anticipation or for trial and to that extent he is fully discoverable. A regularly employed expert, on the other hand, may acquire information in anticipation of litigation and to that extent is discoverable only as provided in Rule 26(b)(4)(B). Rule 26(b)(4)(B) and the Advisory Committee Note clearly anticipate that a regular employee, under appropriate circumstances, may be considered as ‘specially employed’ by a party to the litigation, and therefore, subject to discovery of information and opinions so obtained only under exceptional circumstances. The reference in Rule 26(b)(4)(B) and the Advisory Committee Note to a ‘specially employed’ expert is properly interpreted as encompassing a regular employee of the party who is designated and assigned by that party to apply his expertise to a particular matter in anticipation of litigation or for trial. To the extent such an expert discovers facts or forms opinions in the process, the expert has been ‘specially employed’ within the meaning of Rule 26(b)(4)(B). [quoted from Graham, Discovery of Experts under Rule 26(b)(4) of the Federal Rules of Civil Procedure, 1976 U.I11.L.F. 895, 942],

See also In re Shell Oil Refinery, 134 F.R.D. 148, 150 (E.D.La.1990)(ruling that in-house employees may “wear two hats: one of a specially employed expert in anticipation of litigation with Rule 26(b)(4)(B) protection; and one of an ordinary witness protected only by the standards of relevancy). Which hat they wear depends on whether their knowledge was gained in the course of their special employment as members of the investigation team or in the course of their regular duties.” Id. The court permitted the deposition of the employees only about facts known and opinions held prior to being specially employed in preparation for trial. Id.

Accordingly, we grant certiorari and quash the trial court’s order to the extent that it requires discovery of Captain Kramer’s opinions regarding the paramedics’ standard of care and compliance with JFRD patient treatment protocol. His deposition is permitted to the extent of facts and opinions held prior to being specially employed in preparation for trial by the City.

II.

The City also sought to prohibit as irrelevant, and beyond the scope of discovery, Respondent’s inquiry of Captain Kramer’s knowledge regarding an alleged breach of patient confidentiality by two other JFRD employees who did not treat the decedent during the EMS call at issue and who allegedly had subsequently mishandled the EMS report pertaining to the decedent. Irrelevant discovery does not necessarily cause irreparable harm. Allstate Ins. Co. v. Langston, 655 So.2d at 94. We agree with the Respondent that the City has not demonstrated irreparable harm which cannot be remedied on plenary appeal relating to this inquiry, and that the order does not depart from the essential requirements of law. Accordingly, we deny the City’s petition for certiorari on this issue.

Certiorari Granted in Part and Denied in Part; Order Quashed in Part.

WEBSTER and PADOVANO, JJ„ concur.

      . Respondent presented no arguments for waiver and none are apparent from the record.

      . Certiorari review of a discovery order granting discovery of work product is appropriate. See Allstate Ins. Co. v. American Southern Home Ins. Co., 680 So.2d 1114, 1117 (Fla. 1st DCA 1996); Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995)(stating that discovery of certain kinds of information may reasonably cause material injury of an irreparable nature, including work product); Meltzer v. Coralluzzo, 499 So.2d 69 (Fla. 3d DCA 1986)(granting certiorari and quashing order requiring discovery of physicians’ expert opinions when they had no knowledge of the facts and no previous contact with the patient).

      . "Because the Florida Rules of Civil Procedure are modeled after the Federal Rules of Civil Procedure, federal decisions are highly persuasive in ascertaining the intent and operative effect of various provisions of the rules.” Wilson v. Clark, 414 So.2d 526, 531 (Fla. 1st DCA 1982).


author: PER CURIAM.

text:
    Ramesh SINGH, Appellant, v. GALE INSULATION and Specialty Risk Services, Appellees.
    No. 1D02-2967.
    District Court of Appeal of Florida, First District.
    Aug. 6, 2003.
    L. Barry Keyfetz of L. Barry Keyfetz, P.A., and Bradley Asnis of Asnis & Sreb-nick, L.L.C., Miami, for Appellant.
    Daniel L. Koch of Herzfeld & Rubin, Miami, for Appellees.
   PER CURIAM.

The workers’ compensation order finding claimant’s accident not compensable because claimant had substantially deviated from the course and scope of his employment when the accident occurred is erroneous as a matter of law. See Taylor v. Dixie Plywood Co., 297 So.2d 553 (Fla. 1974).

REVERSED and REMANDED.

ERVIN, BARFIELD and ALLEN, JJ„ concur.


author: PER CURIAM. WOLF, C.J.,

text:
    Peter M. BUKACHESKI, C.O. and Brad A., etc., Appellants, v. BOARD OF PHYSICAL THERAPY PRACTICE, Appellee. Florida Association of Orthotists and Prosthetists and Morris Gallo, Appellants, v. Florida Department of Health, Board of Physical Therapy Practice, Appellee. Board of Orthotists and Prosthetists, Appellant, v. Board of Physical Therapy Practice and Nick Galvez, Appellees.
    Nos. 1D02-3457, 1D02-3464, 1D02-3473.
    District Court of Appeal of Florida, First District.
    Aug. 6, 2003.

      Mark K. Logan, Esq. of Ballard & Logan, P.A., Tallahassee, for Peter M. Bu-kacheski, C.O. and Brad A. Gallo, C.P.O.
    Martin R. Dix, Esq. of Katz, Rutter, Alderman, Bryant & Yon, P.A., Tallahassee, for The Florida Association of Ortho-tists and Prosthetists and Morris Gallo.
    Charlie Christ, Attorney General, M. Catherine Lannon, Senior Assistant Attorney General, Tallahassee, for Board of Or-thotists and Prosthetists.
    Donna Erlich, Assistant General Counsel for Department of Health, Tallahassee, for Board of Physical Therapy Practice.
    Thomas A. Sheehan, III, Esq. and Marshall J. Osofsky, Esq. of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., West Palm Beach, for amicus curiae The Florida Physical Therapy Association.,
   PER CURIAM.

Upon further consideration, this Court has determined that it does not have jurisdiction to consider these appeals. Accordingly, these appeals are hereby dismissed for lack of jurisdiction. See 120.68(1), Fla. Stat. (2001).

DISMISSED.

LEWIS and POLSTON, JJ., Concur; WOLF, C.J., Concurs With Written Opinion.

WOLF, C.J.,

Concurring.

The dismissal of this action shall not be construed as approval of the actions of the appellees, nor should this dismissal be construed to preclude any other administrative or civil action which may be available to appellants.


text:
    Roger PARKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4554.
    District Court of Appeal of Florida, First District.
    Aug. 6, 2003.
    An appeal from the Circuit Court for Duval County. Lance M. Day, Judge.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Janelle C. Gillaspie, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm in part and reverse in part the trial court’s summary denial of appellant’s motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The supporting documents do not conclusively rebut his allegations in Issues I and II, respectively, that trial counsel was ineffective by failing to object when a person was seated on the jury who knew the victim, and by fading to object when the state repeatedly referred to evidence from appellant’s first trial that had been barred from the instant trial. The court attached the transcript of voir dire from appellant’s first trial rather than his second, and did not address the second argument in the final order.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED for further proceedings consistent with this opinion.

WOLF, C.J., ERVIN and BENTON, JJ., concur.


text:
    Jarius A. McTAGGART, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-794.
    District Court of Appeal of Florida, Third District.
    Aug. 6, 2003.
    Bennett H. Brummer, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Erin K. Zack, Assistant Attorney General, for appellee.
    Before GERSTEN, GODERICH, and SHEVIN, JJ.
   PER CURIAM.

Affirmed. See Williams v. State, 110 So.2d 654 (Fla.1959).


author: GREEN, J.

text:
    Rita L. BAILEY, Appellant, v. Michael B. BAILEY, Appellee.
    No. 3D02-1889.
    District Court of Appeal of Florida, Third District.
    Aug. 6, 2003.

      Rimare S. Dyer, for appellant.
    Michael B. Bailey, in proper person.
    Before GREEN and RAMIREZ, JJ. and NESBITT, Senior Judge.
   GREEN, J.

The former wife appeals the final judgment of dissolution of marriage and contends that the lower court failed to equitably distribute the parties’ marital assets and liabilities. Moreover, the wife also argues that the trial court abused its discretion in ordering her to pay child support arrearages where there was not a court order of support in place prior to the final judgment. Upon review, we reverse and vacate both the equitable distribution award of the marital assets and child support arrearage award, and remand this cause for further findings by the trial court.

Although the trial court listed the limited marital assets of the parties in the final judgment and awarded them all to the former husband, it failed to make any written findings in support of its inequitable distribution. In accordance with section 61.075(1), Florida Statutes (2001), if a court’s distribution of the marital assets is disproportionate, then the court must make written findings in support of its distribution. See Taber v. Taber, 626 So.2d 1089, 1090 (Fla. 1st DCA 1993); Ingle v. Ingle, 640 So.2d 223, 224 (Fla. 5th DCA 1994).

Furthermore, the former wife takes issue with the trial court’s failure to specify which of the parties was to be responsible for their $1500 IRS debt. The final judgment, however, specified that this was a “joint IRS debt.” We construe this to mean that this is a debt for which both parties are liable and therefore find no error under section 61.075.

Finally, the former wife argues that the trial court erred in imposing a $15,729.55 child support arrearage award against her and in favor of the former husband, where there was never a temporary order for child support entered against her by the court prior to the dissolution judgment. To the extent the court referred to the past child support in the final judgment as an arrearage rather than retroactive child support, we agree. The distinction between the two is significant as noted by the Fourth District in Milopoulos v. Milopoulos, 691 So.2d 1199, 1200 (Fla. 4th DCA 1997):

Unpaid child support accruing from an order requiring payment, an arrearage, is a vested right, not subject to modification. Making a present award of child support retroactive, however, is discretionary with the trial court. Evidence of ability to pay at the time the petition for modification is filed is necessary, (citations omitted).

Where, as here, the court never ordered the former wife to pay child support prior to the dissolution judgment, we vacate the arrearage award imposed against her for back child support. Upon remand, however, the trial court has the discretion to make the former wife pay child support retroactive to the date of the parties’ separation, based upon her ability to pay. See Id.; Anderson v. Anderson, 609 So.2d 87, 88 (Fla. 1st DCA 1992).

Thus, for the foregoing reasons, we reverse and vacate the equitable distribution award of the parties marital assets as well as the child support arrearage award, and remand for further proceedings consistent with this opinion. In all other respects, we affirm the final judgment of dissolution.

Reversed and remanded in part and affirmed in part.

      . He is the residential custodian of the parties' minor child.

        . The former husband concedes that this would be May 2001 rather than August 1999 as found by the lower court.


text:
    Thomas BARONE, et al., Appellants, v. A-1 CORPORATION OF AMERICA, INC., Appellee.
    No. 3D02-2638.
    District Court of Appeal of Florida, Third District.
    Aug. 6, 2003.
    Greenspoon Marder Hirschfeld Rafkin Ross & Berger and Haas A. Hatic and Jason J. Matthes and Cynthia J. Becker, Fort Lauderdale, for appellants.
    Dennis R. Bedard, Miami, for appellee.
    Before GERSTEN, GODERICH and RAMIREZ, JJ.
   PER CURIAM.

We affirm the order under review. This cause, however, is remanded for the sole purpose of amending the amount of the equitable lien awarded to the appellant, Thomas Barone. The amount awarded is to also include the enhancement of the property’s value as a result of the improvements made by Barone.

Remanded.


text:
    Cornelius SHIVER, Appellant, v. DEPARTMENT OF REVENUE, ex rel., Miriam ARTHUR, Appellee.
    No. 3D02-2295.
    District Court of Appeal of Florida, Third District.
    Aug. 6, 2003.
    Cornelius Shiver, in proper person.
    Charles J. Crist, Jr., Attorney General, and Toni C. Bernstein and William H. Branch, (Tallahassee), Assistant Attorneys General, for appellee.
    Before SHEVIN, and WELLS, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

The trial court’s order dated July 25, 2002, is affirmed. This court is without jurisdiction to review the order of July 10, 2002, as no timely appeal of that order was filed. See DeShone v. DeShone, 846 So.2d 658 (Fla. 1st DCA 2003); Vining v. Flori da Unemployment Appeals Comm’n, 837 So.2d 1162 (Fla. 1st DCA 2003).


text:
    Chey Lamont WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-934.
    District Court of Appeal of Florida, Third District.
    Aug. 6, 2003.
    Chey L. Williams, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, GERSTEN and RAMIREZ, JJ.
   PER CURIAM.

Chey Lamont Williams appeals an order denying his motion to correct illegal sentence. We affirm.

Defendant-appellant Williams was given consecutive sentences as a departure sentence. These were affirmed without opinion on his direct appeal. Williams v. State, 601 So.2d 566 (Fla. 3d DCA 1992). In a subsequent motion for postconviction relief, it was determined that the legal maximum on count two was thirty years and the sentence on that count was corrected accordingly. As corrected, the consecutive sentences are within the legal maximum and are legal sentences. The current motion to correct illegal sentence was correctly denied.

Affirmed.

         We have taken judicial notice of this court's file in Williams v. State, 781 So.2d 1098 (Fla. 3d DCA 2001).


author: NESBITT, Senior Judge.

text:
    PDM BRIDGE CORP., etc., Appellant, v. JC INDUSTRIAL MANUFACTURING, etc., Appellee.
    No. 3D03-561.
    District Court of Appeal of Florida, Third District.
    Aug. 6, 2003.

      Smith, Currie & Hancock and F. Alan Cummings (Tallahassee) and S. Elysha Luken (Tallahassee), for appellant.
    Rasco Reininger Perez & Esquenazi and Alfonso J. Perez and Cristina Martinez-Padilla, for appellee.
    Before GREEN and SHEVIN, JJ., and NESBITT, Senior Judge.
   NESBITT, Senior Judge.

The appellant PDM Bridge Corporation (“PDM”) appeals from the denial of its motion to dismiss for improper venue. For the reasons stated, we reverse.

Venue here is controlled by § 47.051, Florida Statutes (2002), which, in pertinent part provides: “Actions against foreign corporations doing business in this state shall be brought in a county where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located.”

PDM is a Delaware corporation with its principal place of business in Eau Clair, Wisconsin, and is registered to do business in Florida with a Florida business office in Putnam County. PDM entered into a subcontractor contract (with prime contractor Ballast Needham) relating to a Florida DOT bridge project in West Palm Beach (the “Project”). PDM was to supply certain structural steel components.

Appellee JC Industrial, a Florida corporation doing business in Miami-Dade County, is a machine shop that manufactures specially fabricated metal products, including components for bridges. In February, 2001, JC Industrial supplied PDM a quote for certain bridge operating machinery (approximately $3.9 million), which proposal was used by PDM in bidding for the contract with Ballast Needham. PDM and JC Industrial then engaged in extensive negotiations over a period of months to attempt to enter into a “Purchase Order.” These negotiations ultimately reached an impasse in May, 2002, and no Purchase Order contract was ever finalized between PDM and JC Industrial.

However, in December, 2001, prior to their impasse, and while the PDM-Ballast Needham contract was being finalized, PDM sent JC Industrial the “letter of intent” upon which this action is based. The letter of intent stated:

Currently PDM is reviewing our contract with Ballast Needham Construction, Inc. for the above mentioned project. In order to keep the project on schedule, PDM would like to provide you with the “Letter of Intent” to proceed with the ordering of raw materials and preparation of drawings for the “Bridge Operating Machinery” you quoted on February 21, 2001. Total cost of these materials shall not exceed $1,100,000.00.

While the Purchase Order negotiations with PDM were ongoing, JC Industrial ordered materials from some of its suppliers to be used in the fabrication of machinery if those negotiations were successful. On May 30, 2002, PDM sent JC Industrial a letter, from Wisconsin, indicating that an impasse was reached in the attempt to negotiate a Purchase Order, and advising JC Industrial to immediately cease all work on the Project, including material purchasing. JC Industrial released all purchased materials to PDM, who assumed obligations on the purchase orders.

JC Industrial claims that it had commenced to prepare shop drawings as called for in the letter of intent for which it seeks to recover $304,000, and that it also advanced $38,249 for a paymentyperformanee bond that it alleges PDM insisted upon in connection with the Project. In November 2002, J.C. Industrial initiated the instant law suit against PDM in Miami-Dade Circuit Court, asserting breach of contract, promissory estoppel, unjust enrichment and quantum meruit, and claiming PDM has “refused to pay” for the shop drawings and has not reimbursed it for the pay-meni/performance bond premium. All of JC Industrial’s claims are based on the letter of intent, which was attached as an exhibit and incorporated into the amended complaint.

PDM moved to dismiss based on, inter alia, improper venue, asserting that proper venue is in Putman County, its Florida location. JC Industrial alleged that the cause of action accrued in Miami-Dade County, by virtue of the “debtor-creditor” rule, essentially alleging that the contract required PDM to make payment to JC Industrial in Miami-Dade County, and that the causes of action accrued there when payment was not made. PDM argued that since the contract sued upon did not establish a debtor-creditor relationship and the action was not to recover on a promise to pay liquidated monies owed, the debtor-creditor rule was inapplicable. After an evidentiary hearing, the trial court ruled that the debtor-creditor rule was applicable, reasoning that the bond premium which JC Industrial sought to recover was “quite liquidated,” and that venue was therefore proper in Miami-Dade County. This appeal followed.

The debtor-creditor rule was succinctly summarized in James A. Knowles, Inc. v. Imperial Lumber Company, Inc., 238 So.2d 487, 489 (Fla. 2d DCA 1970):

‘ * * * Where a contract involving the payment of money and no place of payment is expressly agreed on, it may be implied that payment is to be made where the payee resides or has an established place of business, and where payment under the contract may be made. Where there is an express promise to pay, and no place of payment is stipulated, the debtor should seek the creditor unless otherwise provided or agreed. In such cases the cause of action accrues where the default occurred, though it be in the county where the plaintiff resides, and the action may be maintained in such county for the defendant’s breach. But this rule is clearly Only [sic] applicable when a debtor-creditor relationship exists between defendant and plaintiff and the promise sued on is for the payment of money. (Emphasis added).

PDM argues correctly that the special venue rules pertaining to suits to enforce payments on debts do not apply in the absence of a debtor-creditor relationship flowing from an express contractual promise to pay a certain sum of money owed. See Croker v. Powell, 115 Fla. 733, 156 So. 146 (Fla.1934); Clarke v. Cartee, 549 So.2d 722, 724 (Fla. 1st DCA 1989); Earl W. Shomber & Co. v. Florida Casino Associ ates, Inc., 469 So.2d 936, 937 (Fla. 3d DCA 1985); Brunswick Goldenrod Corp. v. Downsbrough, 156 So.2d 670 (Fla. 3d DCA 1963). These elements are not present in this case. Certainly, if there are monies owed for shop drawings or the bond premium, they are not specified in the letter of intent and are “unliquidated and subject to proof,” thus rendering the debtor-creditor venue rule inapplicable. See Magic Wok Intern., Inc. v. Li, 706 So.2d 372, 374 (Fla. 5th DCA 1998); American Fidelity Fire Ins. Co., v. Allied General Contractors, Inc., 365 So.2d 442 (Fla. 3d DCA 1978); American Intern. Food Corp. v. Lesko, 358 So.2d 250 (Fla. 4th DCA 1978).

JC Industrial further urges that Miami-Dade County is a proper venue because its various claims are forms of “general assumpsit” which, it argues, would allow an action to be brought wherever JC Industrial resides, relying primarily upon Saf-T-Clean, Inc. v. Martin-Marietta Corp., 197 So.2d 8 (Fla.1967) and Producers Supply, Inc. v. Harz, 149 Fla. 594, 6 So.2d 375 (1942). The invocation of “general assumpsit” does not change the venue result here as these decisions are also premised upon a debtor-creditor relationship and an express promise to pay, including claims for open account, account stated, or for goods sold and delivered. No such factors are present here.

The circumstances considered, we think the trial court erred in denying PDM’s motion, and the order under review is therefore reversed with directions that this matter be transferred to Putnam County.


author: STEVENSON, J.

text:
    Johnny RACKINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-649.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2003.
    Carey Haughwout, Public Defender, and Iva Oza, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Appellant, Johnny Rackins, was tried by jury and convicted of possession of cocaine. We affirm the conviction, but reverse the thirty-six month sentence and remand for a hearing so that the trial court may resolve the conflict between the apparent oral pronouncement of thirty months incarceration and the written order of thirty-six months. The State concedes that the transcript reflects that the oral pronouncement is inconsistent with the written sentence. However, the State points to at least three court documents signed by the trial judge which direct a thirty-six month sentence and maintains that “it appears that the court reporter either heard incorrectly or perhaps transcribed incorrectly.”

Where a written order does not conform to the court’s oral pronouncement of judgment and sentence, the oral pronouncement prevails. See Lacey v. State, 831 So.2d 1267, 1270 (Fla. 4th DCA 2002). However, if the State does not concede the error was clerical, a conflict between the written order and the oral pronouncement requires a factual resolution by the trial court.. See Tory v. State, 686 So.2d 689, 691 (Fla. 4th DCA 1996). Accordingly, we reverse the sentence in this case and remand for such a factual resolution and the imposition of the appropriate sentence.

REVERSED in part and REMANDED.

TAYLOR and MAY, JJ., concur.


author: PER CURIAM. GROSS, J.

text:
    Anthony FRIERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1875.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2003.

      Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant appellant’s motion for rehearing in part, withdraw our previous opinion and substitute the following:

This case presents two significant Fourth Amendment issues: (1) Whether during a traffic stop the police may rely on an arrest warrant that arose from an earlier incident where an imposter identified himself as the driver whom the police have detained? and (2) Where there is no reasonable cause to justify a traffic stop, may an outstanding arrest warrant constitute an intervening circumstance that dissipates the taint of the illegal action, so that evidence uncovered during a search incident to arrest is admissible in evidence?

We hold that although the officer might justifiably rely on the erroneously issued warrant to make an arrest, the firearm uncovered during the search incident to the arrest was nonetheless the fruit of the illegal stop, so that it must be suppressed.

After his motion to suppress was denied, Anthony Frierson pled no contest to possession of a firearm by a convicted felon and reserved his right to appeal. The order denying the motion to suppress is “a prior dispositive order” of the circuit court within the meaning of Florida Rule of Appellate Procedure 9.140(b)(2)(A)(i), so this court has jurisdiction.

Frierson sought to suppress the seizure of the firearm, contending that the stop which preceded the arrest was unlawful and that the warrant which provided the basis for his arrest was wrongfully issued.

The trial judge made the following findings of fact:

[0]n July 8, 2001, the defendant was driving an automobile at the intersection of Old Dixie Highway and Northlake Boulevard in Lake Park, Florida. The vehicle in which the defendant was riding was stopped at a traffic light facing north on Old Dixie Highway. Officer Steven Miller was stopped behind the defendant’s vehicle. Upon the traffic light turning green, the defendant made a left hand turn onto Northlake Boulevard. Officer Miller testified that the defendant did not use a left turn signal prior to or during the left hand turn. Officer Miller also testified that neither he nor the drivers of other vehicles were affected by the defendant’s failure to use a turn signal while making that turn. The officer’s testimony also indicated that he observed a white light emanating from a crack in the plastic lens covering the tail light of the left rear of the defendant’s vehicle. Officer Miller acknowledged that the plastic lens was cracked, but that the light was operating.
Because the defendant failed to use a turn signal in making his left hand turn and because white light was emanating from a crack in the plastic lens covering the taillight, Officer Miller effected a traffic stop of the defendant’s vehicle. Upon being stopped by Officer Miller, the defendant provided the officer with identification. Officer Miller ran a check on the defendant, and learned that there was an outstanding warrant for the defendant’s arrest for failure to appear in another proceeding. As a result of the outstanding warrant, the defendant was arrested. A search incident to the defendant’s arrest revealed the firearm which formed the basis of the charge against him in this case. A subsequent investigation determined that the warrant which provided the basis for the defendant’s arrest was issued due to another person’s failure to appear. Someone other than the defendant was issued a notice to appear in the other case and wrongfully gave the issuing officer the defendant’s name and date of birth. A fingerprint was taken of the individual to whom the notice to appear was issued. It is undisputed the print taken did not match that of the defendant’s.

For reasons which we will explore more fully below, the trial court denied the motion to suppress, holding that even though the initial traffic stop was without reasonable cause, the existence of the arrest warrant constituted an intervening circumstance which dissipated the taint of the gun being obtained as the result of an illegal traffic stop.

The traffic stop was without legal basis

In this case, the officer stopped Frierson for the failure to signal when turning and driving with a cracked taillight.

Under section 316.155(1), Florida Statutes (2000), a person may not turn a vehicle “from a direct course upon a highway unless and until such movement can be made with reasonable safety, and then only after giving an appropriate signal ... in the event any other vehicle may be affected by the movement.” A law enforcement officer may arrest a person without a warrant when a “violation of chapter 316 has been committed in the presence of the officer.” § 901.15(5), Fla. Stat. (2000).

Section 316.610, Florida Statutes (2000) prohibits the driving of a vehicle that “is not at all times equipped with such lamps and other equipment in proper condition and adjustment as required in this chapter.” Section 316.221(1), Florida Statutes (2000) requires a motor vehicle to be equipped with “at least two taillamps mounted on the rear, which, when lighted ... shall emit a red light plainly visible from a distance of 1,000 feet to the rear....”

Upon “reasonable cause to believe that a vehicle is ... not equipped as required by law, or that its equipment is not in proper adjustment or repair,” a police officer may “require the driver of the vehicle to stop and submit the vehicle to an inspection. ...” § 316.610(1).

We agree with the circuit court that the stop of Frierson was without reasonable cause. We adopt Judge Marra’s reasoning:

Because, the undisputed testimony indicated that no drivers were affected by the defendant’s failure to use a turn signal, and the left tail light of the defendant’s vehicle was, in fact operating, the defendant contends that Officer Miller had no legal basis to effect the traffic stop. Established precedent from the Florida Supreme Court supports the defendant’s contention.
In State v. Riley, 638 So.2d 507 (Fla.1994), the court was presented with facts nearly identical to those presented in the present case. The defendant in Riley was a passenger in a vehicle that was stopped for failure to use a turn signal when making a right-hand turn. As a result of the stop, the defendant was arrested for possession of marijuana. The defendant challenged the validity of the stop, contending that since no one was affected by the turn, the arresting officer had no basis to conduct a traffic stop. In holding that the stop was improper, the supreme court held that: Section 316.155(1) directs that a person may not turn a vehicle from a direct course upon a highway unless and until the turn can be made with reasonable safety. The statute further provides that the turn may only be completed “after giving an appropriate signal in the manner hereinafter provided, in the event any other vehicle may be affected by the movement.” § 316.155(1), Fla. Stat. (1991) (emphasis added). Thus, the plain language of the statute only requires a signal if another vehicle would be affected by the turn.... If no other vehicle is affected by a turn from the highway, then a signal is not required by the statute. If a signal is not required, then a traffic stop predicated on failure to use a turn signal is illegal and any evidence obtained as a result of that stop must be suppressed .... The two officers that stopped the vehicle testified that no other vehicle was affected by the driver’s right-hand turn onto the highway. Under these circumstances, the driver did not violate section 316.155 and should not have been stopped by the officers. Thus, the evidence obtained as a result of the improper stop was properly suppressed.
Id. at 508. A subsequent case interpreting Riley has recognized that the mere failure to use a turn signal, without the driver’s conduct creating a reasonable safety concern, does not constitute a violation of the statute. See Crooks v. State, 710 So.2d 1041, 1043 (Fla. 2d DCA 1998).

In view of the fact that the undisputed testimony in this case was that the defendant’s failure to use a turn signal did not affect any other vehicles, and since there was no evidence suggesting that the defendant’s turn created a concern for safety, Officer Miller could not validly stop the defendant based upon his failure to use his turn signal.

With respect to the cracked taillight lens, the Florida Supreme Court decision of Doctor v. State, 596 So.2d 442 (Fla.1992) is controlling. In Doctor, the arresting officers stopped the defendant’s vehicle citing a broken taillight. The officers testified that they had stopped the defendant’s vehicle “after observing a white light emitting from a crack in the tail assembly.” Id. at 444. The officers agreed that the equipment defect “was a crack in the innermost lens of the left taillight assembly.” Id. at 446.

In holding that the stop in Doctor was illegal, the court stated:

It was the reflector that was cracked, rather than one of the lights. Trooper Burroughs confirmed that the vehicle had taillights shining on each side of the rear of the vehicle, despite the cracked lens cover, at the time of the stop. Thus, as Trooper Burroughs conceded, the vehicle had “at least two taillamps” in working order when it was pulled and was not in violation of the law.... [A] reasonable officer would have known that Doctor’s vehicle was in compliance with the law since red tailhghts were visible on both ends of the vehicle.

Id. at 446-47.

The facts in Doctor are also nearly identical to the facts in the present case. Officer Miller did not testify that the red lens cover was missing from the vehicle. Rather, he testified that it was cracked, and as a result, he observed white light emanating through the crack. In Doctor, the Supreme Court held that such a defect was not violative of the law and was not a valid basis to conduct a traffic stop.

Officer Miller justiñably relied on the outstanding, but invalid warrant in arresting Frierson

Frierson strenuously argues that the warrant in this case was insufficient to support the arrest and search.

The warrant arose from a uniform traffic citation issued on April 11, 2001. Officer Keith Gorski of the West Palm Beach Police Department made a traffic stop. The person stopped did not have a driver’s license. The person gave Frierson’s name, address, and birth date as his own.

Officer Gorski ran the name through his dispatcher for a computer check to see if the person stopped had a warrant or if his license was valid. The name, address, and date of birth matched the information on Frierson’s driver’s license. The computer check indicated that Frierson’s driver’s license was suspended.

Officer Gorski issued the driver a uniform traffic citation and notice to appear charging him with driving while his license was suspended or revoked. Also, he affixed the driver’s thumbprint on the original of the citation that was filed with the court clerk. The citation set an initial court appearance for April 26, 2001.

The person who received the citation failed to appear on April 26 and an arrest warrant issued for Frierson. After Frier-son’s arrest in this case, the state attorney’s office had Frierson’s thumbprint compared to the one on the original citation and they did not match. The state nolle prossed the driving under suspension charge against Frierson on September 25, 2001.

A notice to appear issued by an officer at the scene is a proper method of charging a person with a crime. See Fla. R.Crim. P. 3.140(a)(2). If a person arrested for a misdemeanor does not demand to be taken before a magistrate, an arresting officer may issue a notice to appear unless:

(1) the accused fails or refuses to sufficiently identify himself or herself or supply the required information;
(2) the accused refuses to sign the notice to appear;
(3) the officer has reason to believe that the continued liberty of the accused constitutes an unreasonable risk of bodily injury to the accused or others;
(4) the accused has no ties with the jurisdiction reasonably sufficient to assure the accused’s appearance or there is substantial risk that the accused will refuse to respond to the notice;
(5) the officer has any suspicion that the accused may be wanted in any jurisdiction; or
(6) it appears that the accused previously has failed to respond to a notice or a summons or has violated the conditions of any pretrial release program.

Fla. R.Crim. P. 3.125(b).

In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the United States Supreme Court held that suppression of evidence was not required when the police obtained it through objective good faith reliance on a facially valid warrant that is later found to lack probable cause. The court reasoned that a “good faith” exception to the exclusionary rule was proper under such circumstances because suppression would not promote the exclusionary rule’s purpose of deterring official misconduct. Id. at 918-19, 104 S.Ct. 3405.

In Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995), the Supreme Court considered the good faith exception in the context of an arrest based upon an erroneous police record indicating the existence of an outstanding arrest warrant. In Evans, during a traffic stop, a police officer discovered an outstanding arrest warrant through a computer check of the defendant’s name. The officer arrested the defendant, searched the vehicle incident to the arrest, and discovered a bag of marijuana. Id. at 4, 115 S.Ct. 1185. The defendant moved to suppress the marijuana as the fruit of an unlawful search, arguing that the warrant had previously been quashed, but due to a clerical error, had not been removed from the records of the sheriffs office. Id.

The Supreme Court refused to exclude the evidence. The court found that there was no indication that the officer did not act in an objectively reasonable manner when he relied upon the police computer record. The court wrote that the policy objective of the exclusionary rule, deterrence of police misconduct, would not be served by suppressing the evidence. Id. at 10-14, 115 S.Ct. 1185; see United States v. Santa, 180 F.3d 20, 25-30 (2d Cir.1999) (finding that good faith exception applied where arresting officers reasonably relied upon a warrant that another jurisdiction had erroneously failed to remove from database).

The trial judge’s order discusses the application of Evans by the Florida Supreme Court:

In State v. White, 660 So.2d 664 (1995), the Florida Supreme Court applied the holding of Evans to exclude evidence discovered incident to an erroneous arrest resulting from a computer error in a sheriffs office. In White, the court concluded that the failure of the police to maintain up-to-date and accurate computer records was the type of police negligence that fit within the class of governmental action that the exclusionary rule was designed to deter. Thus, the Court concluded that this type of negligence or misconduct was of the type likely to be “thwarted” if the evidence was suppressed. The Court stated that “[sjuppression of evidence seized pursuant to police computer error will encourage law enforcement agencies to diligently maintain accurate and current computer records.” Id. at 667.
The Florida Supreme Court came to a similar conclusion in Shadier v. State, 761 So.2d 279 (Fla.2000). There, the court held that evidence obtained as a result of a warrant issued from erroneous records of the Department of Highway and Safety should also be suppressed. The underlying rationale for the decision in Shadier was the court’s conclusion that the Department of Highway and Safety was a “law enforcement agency” and that its employees are adjuncts of the law enforcement team. Id. at 285. Thus, the Court concluded that the exclusionary rule was “perhaps the only means by which the judiciary can help to ensure the accuracy of records and information compiled by the Department of Highway Safety and its divisions that routinely provide records to Florida’s police and sheriffs’ departments.” Id. at 285.

We agree with Judge Marra that White and Shadier do not preclude the state from relying on the Leon and Evans good faith exception in this case:

When one applies the factors considered by the [United States Supreme] Court in Leon and Evans, it is clear that the good faith exception should apply in the present case. As previously noted, the exclusionary rule was designed to deter police misconduct. Any misconduct which occurred in the present case stemmed from the actions of a private citizen, not the actions of individuals or entities associated with the state. Excluding the evidence in the present case will not have any deterrent effect on private citizens who falsely identify themselves to police. Nor could the threat of exclusion of the evidence under these facts be expected to deter private individuals from continuing to provide false information upon encounters with the police. Lastly, if the erroneous actions of court employees, who are the agents of the state, do not warrant the application of the exclusionary rule, the wrongful actions or private citizens cannot justify its application.
The defendant asserts that by applying the exclusionary rule in this case, it will deter police agencies from negligence in incorrectly identifying individuals who are arrested. The defendant contends that police agencies should be required to verify the identity of all individuals who are arrested or to whom notices to appear are issued by checking fingerprints obtained from the arrested individuals against the police agencies’ fingerprint databanks. The defendant avers that the failure to do so is “negligence or misconduct” which must be “thwarted” by suppression of evidence.
Th[e] Court concludes that to require such action by police agencies for all persons who are arrested would place an undue and unreasonable burden on them. Th[e] Court does not believe that the exclusionary rule was intended to impose such extreme burdens upon law enforcement authorities, nor does th[e] Court believe that law enforcement’s failure to institute such a burdensome procedure constitutes “the type of police negligence ... the exclusionary rule was designed to deter.”

We note that an officer has the discretion to issue a notice to appear for a criminal traffic offense such as driving under a license suspension. Here, the counterfeit Anthony Frierson provided Officer Gorski with a name, address, and date of birth that matched the driver’s license record on the computer. This provided the officer with an adequate basis for believing that the driver had “sufficiently identified] himself’ to allow the issuance of a notice to appear instead of a custodial arrest. Fla. R.Crim. P. 3.125(b)(1).

Since the enactment of section 322.15(2), Florida Statutes (2001), the taking of a fingerprint of a person who does not produce a driver’s license during a traffic stop is a requirement of statute. As Judge Gross explains in his concurring opinion, the purpose behind the statute is to benefit those whose identity has been wrongfully coopted, not to burden a law enforcement agency with further records searches to possibly verify the identity of the provider of the fingerprint.

Because the traffic stop was without reasonable cause, the firearm is subject to suppression as the fruit of the poisonous tree, notwithstanding the outstanding warrant

We depart from the trial court in one crucial respect. Existing precedent from this court requires suppression of the firearm.

Kimbrough v. State, 539 So.2d 619 (Fla. 4th DCA 1989), involved an officer who stopped a car without founded suspicion. A “police computer check of [the defendant’s] identity revealed an outstanding arrest warrant in [the defendant’s] name.” Id. The defendant was arrested and two cocaine rocks were discovered during “the ensuing search of his person.” Id. This court held that because “there was no founded suspicion to justify the officer’s stop in the first place,” “the physical evidence obtained during the subsequent search” of the defendant “would properly be suppressed.” Id.

The second district followed Kimbrough in writing that where an officer stops a moving vehicle without “cause to believe a traffic infraction has occurred,” “[t]he fact that the officer subsequently discovers] an outstanding warrant does not validate an illegal detention.” Rollins v. State, 578 So.2d 850, 851 (Fla. 2d DCA 1991).

More recently, in Solino v. State, 763 So.2d 1249 (Fla. 4th DCA 2000), we ruled that a stop of a moving vehicle based on an anonymous tip was without reasonable suspicion for the officer to make an investigatory stop. After the stop, the officer’s computer check revealed an outstanding arrest warrant for Solino for burglary and a violation of probation. The officer told Solino that he was under arrest. Soli-no ran from the scene and disappeared into a housing development. Because the investigatory stop was “unlawful,” we held that the information obtained by the officer “that led to the arrest was ‘fruit of the poisonous tree’ and should have been suppressed” under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Id. at 1252.

Kimbrough, Solino, and Rollins compel the conclusion that the trial judge should have granted the motion to suppress the firearm because the initial traffic stop was not supported by reasonable cause.

The trial court relied upon Wigfall v. State, 323 So.2d 587 (Fla. 3d DCA 1975) and State v. Foust, 262 So.2d 686 (Fla. 3d DCA 1972).

In Foust, the police arrested the defendant pursuant to two bench warrants which were revealed to the officer by a radio check. 262 So.2d at 687. A search of the defendant incident to the arrest uncovered marijuana. Id. The trial court suppressed the evidence. Id. The third district reversed, holding that the search of the defendant incident to the arrest was reasonable. Id. at 688. The court wrote that “the reasonableness of the search after arrest was not affected by the fact that the original stopping of [the defendant] may have been without probable cause.” Id.

The basis for the holding in Foust is that the warrant was an intervening circumstance which rendered the subsequent search sufficiently attenuated from the illegality of the initial stop. See Wong Sun, 371 U.S. at 488, 491, 83 S.Ct. 407. The essence of Kimbrough, Solino, and Rollins is that an arrest warrant “does not validate an illegal detention.” Rollins, 578 So.2d at 851. We certify conflict with Foust.

We reverse the conviction and sentence.

KLEIN and SHAHOOD, JJ., concur.

GROSS, J., concurring specially with opinion. ■

GROSS, J.

concurring specially.

I concur in the majority opinion because the result is required under Kimbrough and Solino. However, were we writing on a clean slate, I would affirm the ruling of the trial court that “the existence of a valid outstanding warrant discovered in the course of an illegal traffic stop” sufficiently attenuated the connection between the illegal stop and the search incident to the arrest so as to render the firearm found during the search admissible in evidence.

A court may admit evidence that would not have been uncovered but for police misconduct if the causal connection between the illegal conduct and the discovery of the evidence is sufficiently attenuated. Wong Sun, 371 U.S. at 491, 83 S.Ct. 407. In Wong Sun, the Supreme Court indicated that the proper inquiry is whether the evidence was obtained through exploitation of the initial constitutional violation or by other means sufficiently attenuated from the primary illegality so as to purge the evidence of its taint. Id. at 488, 491, 83 S.Ct. 407; see, e.g., United States v. Fazio, 914 F.2d 950, 957 (7th Cir.1990) (indicating that evidence may be sufficiently distinguishable to be purged of the primary taint if “the causal connection between [the] illegal police conduct and the procurement of [the] evidence is ‘so attenuated as to dissipate the taint’ of the illegal action”).

In Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), the Supreme Court set forth three factors for determining whether the causal chain has been sufficiently attenuated to dissipate the taint of the illegal conduct: (1) the time elapsed between the illegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.

Similar factually to this case, United States v. Green, 111 F.3d 515 (7th Cir.1997), applies the principles of Wong Sun and Brown. As Judge Marra wrote below, in Green

the defendant was driving in a vehicle that was stopped without probable cause. During the course of the traffic stop, the officers discovered that an outstanding warrant existed for a passenger in the vehicle. The passenger was arrested and the vehicle was searched incident to the arrest. Contraband was discovered in the vehicle. As a result, the defendant was arrested. In Green, as in the present case, the defendant asserted that but for the illegal traffic stop, the police would never have discovered the outstanding warrant for his passenger. But for that discovery, his passenger would not have been arrested and a search of the vehicle would not have been conducted. Thus Green asserted that discovery of the contraband was “fruit of the poisonous tree” and should be suppressed. [111 F.3d at 517-18].

In Green, the Seventh Circuit recognized that the United States Supreme Court did not establish a “but for” test that would render inadmissible any evidence that comes to light after an illegal stop. Id. at 520. The court concluded that because it was not “outweighed by flagrant official misconduct,” the arrest warrant was an intervening circumstance dissipated “any taint caused by the illegal stop of the Greens.” Id. at 521. The court wrote:

It would be startling to suggest that because the police illegally stopped an automobile, they cannot arrest an occupant who is found to be wanted on a warrant-in a sense requiring an official call of “Oily, Oily, Oxen Free.” Because the arrest is lawful, a search incident to the arrest is also lawful. The lawful arrest of Avery constituted an intervening circumstance sufficient to dissipate any taint caused by the illegal automobile stop.

Id. In evaluating the “official misconduct,” the seventh circuit concluded that there was no evidence of “bad faith on the part of the police.” Id. at 523.

Other courts have followed Green. See People v. Murray, 312 Ill.App.3d 685, 245 Ill.Dec. 430, 728 N.E.2d 512, 516-17 (2000); State v. Jones, 270 Kan. 526, 17 P.3d 359, 360-61 (2001); State v. Hill, 725 So.2d 1282, 1285-86 (La.1998); see also Ruffin v. State, 201 Ga.App. 792, 412 S.E.2d 850 (1991).

There is no indication of bad faith on the part of Officer Miller in this case. A finding of no reasonable suspicion to make a traffic stop requires a close reading of the traffic statutes and applicable case law. It is not unusual to find police officers who are unable, on the street, to parse the nuances of statutes with the precision of trained jurists. The officer did not “exploit the stop in order to search the automobile.” Green, 111 F.3d at 523. The search came only after the officer learned of the outstanding warrant. But for Kim-brough, Solino, and Rollins, I would follow Green and its progeny and find that the intervening circumstances in this case dissipated any taint of the evidence that arose from the illegal stop of the vehicle.

The recent case of State v. Diaz, 850 So.2d 735, 2003 WL 21087992 (Fla. May 15, 2003) is close, but not directly on point. There, following an illegal detention of a driver, a license check revealed that the driver’s license was suspended. The driver was charged with felony driving with a suspended license. The supreme court affirmed the third district’s dismissal of the case without discussing the attenuation issue.

For an attenuation analysis, the crucial distinction between Diaz and this case is that here the police acted on an outstanding arrest warrant. A warrant indicates the existence of criminal conduct separate from the conduct that occurred at the time of the illegal traffic stop. Justified by conduct so removed from the illegal traffic stop, the arrest supports a search incident to the arrest.

I also write to discuss the history of the program in Palm Beach County where, during a traffic stop, officers affix thumbprints on citations of persons without licenses. I served on the county court when the program was initiated.

During the 1980s the Palm Beach County Jail was under a federal court order to address the problem of overcrowding. At the same time, the county government was concerned about reducing costs of operating the jail. Applicable statutes and court rules provided that persons charged with crimes were entitled to pretrial release on reasonable conditions. Officers were encouraged to write notices to appear for traffic crimes to reduce the costs attendant to a custodial arrest.

In the late 1980s, the Palm Beach County county court judges noticed a recurring pattern in some cases where persons without driver’s licenses had been issued notices to appear. Typically, the defendant charged in such a case contended that he or she had not received the citation. A lawyer was often appointed, or the defendant hired a lawyer, and the defendant was required to make multiple court appearances to resolve the case. A case often turned on the ticketing officer’s ability to recognize the individual to whom the citation was given.

In cases where the imposter was identified, he or she usually turned out to be someone with a close relationship to the person whose name was given to the ticketing officer, such as a sibling, cousin, or close friend. These persons knew enough personal information, such as birthday and address, to survive the computer check.

Working in conjunction with the state attorney’s office, the Palm Beach County county court judges created a program where, on the original citation filed with the court, an arresting officer would affix the thumbprint of a person who could not produce a valid driver’s license or other identification. With the citation so readily available, a person whose defense was that he or she was not the person who received the citation could provide a thumbprint to the state attorney’s office in open court. The prosecutor’s office arranged to have the thumbprint compared to the print on the original citation. If there was no match, then the prosecutor would nolle prosse the charge and have the discretion to file criminal charges against the imposter.

The program proved to be successful. The cost of providing traffic officers with portable thumbprint kits was minimal. The program drastically reduced the court appearances of persons wrongfully charged. It provided hard evidence to make a criminal case against the imposter under section 901.36(1), Florida Statutes (2000). An unanticipated effect was that officers reported that many would-be imposters confessed their true identity when confronted on the street with the thumbprint requirement. The success of the program in Palm Beach County and other jurisdictions led to the passage of section 322.15, Florida Statutes (2001). See Ch. 90-102, § 2, at 271-72, Laws of Fla.

I agree with the majority opinion and Judge Marra that the exclusionary rule was not intended to shackle law enforcement agencies with burdensome procedures. The defendant’s approach would transform an efficient, cost-effective program into an onerous administrative obligation for a law enforcement agency to ascertain the identity of ticketed persons who cannot produce a driver’s license. A search would be required even in cases where a defendant provided their correct name. The practical effect of a ruling for Frierson would be that more police officers would err on the side of finding that an accused has failed to “sufficiently identify himself’ under rule 3.125(b)(1), so that more custodial arrests would occur.

      . Florida Rule of Traffic Court 6.165(a) provides that "[a]ll prosecutions for criminal traffic offenses by law enforcement officers shall be by uniform traffic citation as provided for in section 316.650, Florida Statutes, or other applicable statutes, or by affidavit, information, or indictment as provided for in the Florida Rules of Criminal Procedure.”

      . We note that giving a false name to a law enforcement officer after being arrested or lawfully detained is a criminal violation. See § 901.36(1), Fla. Stat. (2000).

      . The opinion in Solino only indicates that a computer check revealed that "Solino’s license had been suspended and he was in violation of probation for a prior conviction of burglary.” Id. at 1250. We have checked our records on the case and determined that there was an outstanding arrest warrant for Solino.


author: SHAHOOD, J.

text:
    J.M., The Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 4D02-3832.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2003.

      Denise E. Kistner of Law Offices of Denise E. Kistner, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laurel R. Wiley, Assistant Attorney General, Fort Lauderdale, for appellee.
   SHAHOOD, J.

Based on the facts of this case, we reverse the trial court’s order of disposition adjudicating the infant child, C.R., dependent, where it found that the infant, who was absent from the jurisdiction, was at risk of harm with his mother, who herself was a minor and had been adjudicated dependent, but was on runaway status.

In this case, the trial court issued an ex parte order to take into custody, the mother, J.M., and her infant child. The mother, at the time, was a sixteen-year old dependent foster child who ran from her placement with her eight-month old infant child. While the mother had been adjudicated a dependent and placed in the temporary custody of the Department, the infant child, at no time, had been declared a dependent prior to the filing of the instant petition.

The Department filed an affidavit and petition for placement of the infant child in a shelter. The petition alleged that there was probable cause to believe that the infant child had been abused, abandoned or neglected or was in imminent danger of illness or injury as a result of the mother running away from her foster care placement. The Department had received information from the mother’s grandmother that the mother and the child had been in the state of Virginia; however, the mother allegedly ran from that unknown location after being told by the grandmother that she was calling the police to pick her up. Thereafter, the mother contacted her Guardian Ad Litem and informed her that she and the baby were fine. Information was then received by Margate police that the mother was attempting to obtain a birth certificate for the child. The petition alleged that the child’s safety could not be assured because the mother ran away before preventive services could be implemented. The Department requested that the infant child be placed in Department custody upon being located. A shelter order was entered on May 15, 2002.

The Department then filed a Verified Petition for Dependency. The petition realleged the allegations contained in the shelter petition and claimed that the mother’s actions harmed the child and or caused the child’s physical, mental or emotional health to be significantly impaired. The Department was unable to ensure the protection of the minor child without judicial intervention and voluntary services were not appropriate for the family because the parents’ whereabouts were unknown.

The court conducted an arraignment hearing, but the hearing was reset because the parents were not properly served. The Department was then ordered to diligently search for the parents and the child.

Thereafter, the court conducted another arraignment hearing on the petition for dependency and entered a consent on behalf of the parents by default after a diligent search by the Department. The mother’s attorney ad litem was present. The attorney ad litem objected to the adjudication and argued among other things that the Department did not have physical custody of the child; that the Department could not state with certainty that the minor child and the parents were still in the State of Florida; that the only allegation of risk against the mother was that she ran away with the child despite having cared for the child for months; that the adjudication was sought only after the mother ran away; that the mother had no notice of the Department’s investigation into her running away or that it was seeking judicial intervention as to the infant; and that the mother’s runaway status was not the result of any initiation of judicial intervention concerning the infant child.

Notwithstanding argument by the attorney ad litem, the court, after hearing hearsay evidence presented by the Department as to the mother’s alleged pregnancy and that the mother was going house to house because she was unable to procure public assistance due to these proceedings, adjudicated the infant child dependent. The court expressed concern for the infant child and stated that because of the “unknown situation,” the child should be declared dependent so that everything was in place and the Department could move quickly if a “bad situation” developed.

A disposition hearing was held pursuant to which the court entered an Order of Disposition reiterating that the minor child was adjudicated dependent based on the allegations set forth in the petition for dependency. The court set forth certain tasks for the parents to perform prior to reunification. The mother signed a reunification case plan in November 2002 when her whereabouts were ascertained.

We hold that under the circumstances of this case, where the Department never had custody of the infant child, and where no notice or opportunity to be heard was ever given to the mother, the trial court did not have jurisdiction over the child to enter its Order of Disposition adjudicating the infant child dependent. Moreover, by entering an order adjudicating the child dependent where both the mother and child were outside the jurisdiction of the court, the mother was deprived of her due process rights.

In addition, we note that even if the court did in fact have jurisdiction over the infant child, the allegations in the petition for dependency and the evidence presented at the hearing were inadequate to support a finding of dependency.

In this case, the mother, who was on runaway status when she left the jurisdiction of the state prior to the filing of the petition, was never in violation of any court order when she left the jurisdiction since the child had never been declared a dependent in this state.

The only allegation supporting neglect by the mother was the fact that she left the state with the child and was on the run. From that, DCF concluded that the child was m imminent risk of harm. In particular, the court held that “[tjhese activities and/or environments threaten harm to the child as defined in Florida Statutes 89.01(30) and/or caused or are likely to cause the child’s physical, mental or emotional health to be significantly impaired or to be in danger of being significantly impaired.”

Other than hearsay testimony presented at trial, there was no evidence that the infant child was ever at risk or suffering from neglect. Thus, the court adjudicated the child dependent based on mere allegation with absolutely no evidence to support such claim.

We accordingly reverse the order of disposition entered by the trial court and remand for further proceedings consistent with this opinion.

WARNER, and KLEIN, JJ., concur.


author: KLEIN, J.

text:
    S.S., the Father, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
    No. 4D02-4837.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2003.
    Kathléen K. Pena of the Law Office of Kathleen K. Pena, Ft. Lauderdale, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori R. Shapiro, Assistant Attorney General, Ft. Lauderdale, for respondent.
   KLEIN, J.

We grant the father’s petition for writ of prohibition in which he asserts that Florida does not have subject matter jurisdiction over T.S., his child, under the Uniform Custody Jurisdiction Act, section 61.514, Florida Statutes (2002).

Before the birth of T.S., his parents and their two other children lived in Florida, but left the state in 1994 after child sexual abuse charges were filed against the father and dependency proceedings were initiated. The family wasn’t located until 2002, when it was discovered living in New York. T.S. was born after the family left Florida.

The father has been arrested and it appears he is now incarcerated pretrial in Florida. The children were removed from the mother in New York and are now in Florida. T.S., who had never lived in Florida, was only sent here from New York because, as a result of a mistake in the paper work filed by the department, his address was shown as “Jamaica Queens Florida.”

The father moved to dismiss for lack of subject matter jurisdiction only as to T.S., because it was undisputed that T.S. had never been in Florida prior to being picked up in New York. The trial court denied the motion.

The Department argues that the trial court has jurisdiction under section 61.514(l)(b), Florida Statutes, which would authorize Florida to exercise jurisdiction over T.S. if New York is not the home state, or if New York has declined jurisdiction and Florida is the more appropriate forum. It is undisputed, however, that T.S. has never been in Florida prior to this and is only here because of the mistake. Florida can only have jurisdiction under these circumstances if, under section 61.514(l)(b), no other state is the home state of the child, or if another state is, it has declined to exercise jurisdiction because this state is the more appropriate forum.

There is nothing in this record to demonstrate that New York has declined to exercise jurisdiction, and accordingly, at this stage of the proceedings, we have no alternative but to grant the writ of prohibition because Florida does not have subject matter jurisdiction over T.S. Snider v. Snider, 686 So.2d 802 (Fla. 4th DCA 1997)(if the jurisdictional requirements of the UC-CJA are not met, the court has no subject matter jurisdiction).

WARNER and STEVENSON, JJ., concur.


text:
    Robert A. DUNN, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, and Rahn Bahia Mar Mgmt, Inc., Appellees.
    No. 4D03-2410.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2003.
    Robert A. Dunn, Fort Lauderdale, for appellant.
    John D. Maher, Tallahassee, for appellee Unemployment Appeals Commission.
   PER CURIAM.

AFFIRMED. See Fla. R. of App. P. 9.315(a).

FARMER, C.J., WARNER and POLEN, JJ., concur.


text:
    Vidal SOTO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D00-677.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2003.
    Bennett H. Brummer, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and John D. Barker, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN and RAMIREZ, JJ.
   PER CURIAM.

Vidal Soto appeals the sentence imposed after a jury verdict of guilt on the offenses of armed burglary and armed robbery. The State concedes that defendant-appellant Soto is within the window period for purposes of Heggs v. State, 759 So.2d 620 (Fla.2000), see Trapp v. State, 760 So.2d 924 (Fla.2000), and that he is entitled to be resentenced.

Reversed and remanded for resentenc-ing.


author: SILBERMAN, Judge.

text:
    E.A.B., Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2267.
    District Court of Appeal of Florida, Second District.
    Aug. 13, 2003.

      James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

E.A.B. appeals the disposition order that adjudicates him delinquent for trespass in a conveyance and obstructing or opposing an officer without violence. He argues that the trial court erred in denying his motion for judgment of dismissal because the State did not establish a prima facie case of the charges against him. We agree and reverse.

At trial, the State’s evidence established that the owner of a 1997 red Ford Explorer parked his vehicle in a “park and fly” lot on January 17, 2002. He then took a plane to New England. When he returned on January 27, 2002, the vehicle was missing. He contacted the police and learned that the vehicle had been impounded. In the interim, on January 25, 2002, Police Officers Kevin Doan and J.L. Brown responded to a request for backup concerning a red Ford Explorer that was the subject of a BOLO. There was no evidence as to why a BOLO had been issued, but one officer testified that as of January 25, the vehicle had not been reported as stolen.

The officers saw the Explorer at a gas station and observed E.A.B. pumping gas into it. As the officers pulled up, E.A.B. saw them and jumped into the Explorer. The Explorer then took off at a high rate of speed with E.A.B. in the passenger seat. The officers followed the vehicle into Robles Park, a housing development. At some point, the vehicle stopped and the occupants exited. Although the officers used terms such as “fled out of the vehicle” and “abandoned the vehicle,” their testimony was equivocal as to whether they actually saw anyone exit the vehicle and run away or whether they simply caught up to it and found it empty. The officers impounded the vehicle because they believed it might have been stolen.

The officers again came into contact with E.A.B. on February 26, 2002, when they spotted him riding a bicycle. E.A.B. saw the officers, dropped the bike, and fled on foot. Officer Doan caught up with E.A.B., and E.A.B. resisted by struggling, yelling, cursing, and refusing to bring his arms behind him so that he could be handcuffed.

At trial, the officers testified that on February 26, 2002, they pursued E.A.B. because he was a suspect in other cases involving vehicles that had been taken and because of the events of January 25. However, the officers were unable to state whether, on February 26, they knew if the Explorer had actually been reported as stolen, and they did not articulate any facts regarding purported criminal conduct by E.A.B. concerning other cases.

After the State rested its case, E.A.B. moved for a judgment of dismissal. The trial court denied the motion, noting “the special requirement for a motion for judgment of acquittal [sic]” but without otherwise commenting on the State’s proof.

E.A.B. testified in his defense that he was walking to the store when a friend drove up in the Explorer and offered a ride. He asked about the vehicle, and his friend stated that it was hers. E.A.B. testified that he did not know the vehicle was stolen, and he disputed the officers’ description of events.

At the conclusion of the evidence, the trial court adjudicated E.A.B. delinquent on both charges. E.A.B. argues that the trial court erred in denying the motion for judgment of dismissal because the State failed to establish a prima facie case in support of the charges.

Our review of the trial court’s denial of the motion for judgment of dismissal is de novo. See Pagan v. State, 880 So.2d 792, 803 (Fla.2002); Light v. State, 841 So.2d 623, 625 (Fla. 2d DCA 2003). The evidence must be viewed in the light most favorable to the State, and if a rational trier of fact could find that the elements of the crime have been established beyond a reasonable doubt, sufficient evidence exists to sustain the conviction. Pagan, 830 So.2d at 803. If the State did not present sufficient evidence to establish a prima facie case of the crime charged, then a judgment of dismissal is proper. See Fla. R. Juv. P. 8.110(k); Tillman v. State, 842 So.2d 922, 925 (Fla. 2d DCA 2003).

The record reflects that the State did not present any evidence to establish that E.A.B. knew or should have known that the Explorer had been stolen. See P.W. v. State, 730 So.2d 422, 423 (Fla. 5th DCA 1999) (reversing adjudication of delinquency for trespass in an occupied conveyance because the State only proved the vehicle had been stolen, the defendant was a passenger in the vehicle, and there was no evidence the defendant knew or should have known the vehicle was stolen); J.D. v. State, 604 So.2d 936, 937 (Fla. 3d DCA 1992) (concluding that the defendant’s entry into a vehicle with visible damage to the ignition, radio, and speakers, and his lending of his keys to the driver to put in the ignition so that the stolen character of the vehicle might be concealed was sufficient to support a finding that he was guilty of trespass to a conveyance).

The fact that E.A.B. put gas into and was a passenger in the Explorer is not evidence of knowledge that the Explorer had been stolen. Additionally, in R.M. v. State, 763 So.2d 1060, 1062 (Fla. 4th DCA 1999), the court concluded that the defendant’s flight upon the officer’s approach, standing alone, was insufficient to prove the defendant’s knowledge that the vehicle had been stolen. The evidence here was not inconsistent with E.A.B.’s claim that he was simply an unknowing passenger; thus, it cannot support the adjudication for trespass in a conveyance.

While the trial court based its adjudication on the fact that it found E.A.B.’s explanation for being in the vehicle to be unbelievable, E.A.B.’s testimony was not before the trial court at the time of the motion for judgment of dismissal and cannot satisfy the State’s burden of proof. See Fla. R. Juv. P. 8.110(k). Accordingly, the adjudication with respect to the charge for trespass in a conveyance must be reversed.

Turning to the charge of obstructing or opposing an officer without violence, the State had to establish that on February 26 the officers were engaged in the lawful execution of a legal duty and E.A.B.’s actions amounted to obstruction or resistance of that lawful duty. See § 843.02, Fla. Stat. (2001); Mosley v. State, 739 So.2d 672, 675 (Fla. 4th DCA 1999). The element of lawful execution of a legal duty is satisfied if an officer has either a founded suspicion to stop the person or probable cause to make a warrant-less arrest. See I.Y.D. v. State, 711 So.2d 202, 203 (Fla. 2d DCA 1998); Mosley, 739 So.2d at 675. To prove obstruction of an officer without violence, the State must establish that the defendant fled from the officer with knowledge of the officer’s intent to detain him and that the officer was justified in making the detention based on a founded suspicion that the defendant was engaged in criminal activity. D.M. v. State, 681 So.2d 797, 798 (Fla. 2d DCA 1996); F.E.C. v. State, 559 So.2d 413, 414 (Fla. 2d DCA 1990).

The trial court found that the officers had a reasonable suspicion to stop E.A.B. on February 26 because they had, a month before, seen E.A.B. in a vehicle that the officers impounded as possibly stolen, and the court also found that the officers subsequently learned that the vehicle had, in fact, been stolen. However, these findings are not supported by the evidence that was presented at trial.

During their testimony, the officers did not articulate a well-founded suspicion that E.A.B. had committed, was committing, or was about to commit a crime, in order to justify the stop on February 26. See Popple v. State, 626 So.2d 185, 186 (Fla.1993). When the officers approached the Explorer on January 25 and saw E.A.B. pumping gas and riding in the Explorer, they did not know that the Explorer had been stolen. Additionally, the State did not establish why a BOLO had been issued as to the Explorer.

The record also does not establish when the Explorer was reported as stolen. The testimony indicated that when the owner could not find his car and called the police, he learned the vehicle had been impounded. When the officers saw E.A.B. on February 26, they remembered the incident at the gas station from the month before; however, when one of the officers was asked if the Explorer had been reported as stolen, he acknowledged that he was unsure whether he and the other officer were aware of such a report. The record supports a conclusion that while the officers may have had a hunch or some suspicion that the Explorer had been stolen, at the time of E.A.B.’s arrest they did not have a legal basis to justify a stop. See Spikes v. State, 781 So.2d 508, 509 (Fla. 1st DCA 2001) (concluding that officer did not have well-founded suspicion to justify stop of vehicle that had not been reported stolen but had only had a subjective hunch or mere suspicion that the vehicle was stolen); Turner v. State, 552 So.2d 1181, 1182 (Fla. 4th DCA 1989) (stating that officer’s hunch that vehicle might be stolen was not a well-founded suspicion of criminal activity justifying the stop).

Additionally, although the officers testified that they chased E.A.B. on February 26 to talk with him about other vehicle thefts, they did not testify as to why they believed E.A.B. might be a suspect in other thefts. The testimony simply did not establish the officers’ well-founded, articu-lable suspicion of criminal activity. See Miranda v. State, 816 So.2d 132, 135 (Fla. 4th DCA 2002). Moreover, E.A.B.’s flight from the officers on both occasions was insufficient to establish that E.A.B. was involved in criminal activity, and there was no evidence that E.A.B. fled with knowledge that the officers intended to detain him. See D.M. 681 So.2d at 798; S.G.K. v. State, 657 So.2d 1246, 1247-48 (Fla. 1st DCA 1995). Accordingly, the State’s evidence was insufficient to constitute obstructing an officer.

Because the State did not establish that E.A.B. knew the Explorer had been stolen or that the officers were engaged in the lawful execution of a legal duty when they pursued and apprehended him, we reverse the disposition order and remand for entry of an order granting E.A.B.’s motion for judgment of dismissal.

Reversed and remanded.

CASANUEVA and CANADY, JJ„ Concur.

      . In their briefs, the parties referred to the motion as a motion for a judgment of acquittal. The Florida Rules of Juvenile Procedure do not provide for a motion for judgment of acquittal. However, rule 8.110(k) permits a juvenile to move for a judgment of dismissal at the close of the petitioner’s evidence if the evidence is insufficient to establish a prima facie case of guilt. Fla. R. Juv. P. 8.110(f), (k); see also R.M. v. State, 763 So.2d 1060, 1061 (Fla. 4th DCA 1999).


text:
    Arties L. MANNING, Jr., et al. v. UNITED MEDICAL CORPORATION OF NEW ORLEANS, et al.
    No. 2003-CC-2246.
    Supreme Court of Louisiana.
    Aug. 11, 2003.
   In re Louisiana Patients’ Compensation Fund Oversight Bd.; — -Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, Nos. 96-16134, 00-10277; to the Court of Appeal, Fourth Circuit, No. 2003-C-1237.

Denied.

KIMBALL, J., would grant the writ.

VICTORY, J., would grant the writ.

TRAYLOR, J., would grant the writ.


text:
    STATE of Louisiana v. Patrick KENNEDY.
    No. 2003-KK-2269.
    Supreme Court of Louisiana.
    Aug. 12, 2003.
   In re Kennedy, Patrick; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. O, No. 98-1425; to the Court of Appeal, Fifth Circuit, No. 2003-K-881.

Stay denied; Writ denied.

KNOLL, J., recused.


text:
    Michael O'NEILL and Marilyn O'Neill v. DIXIE ELECTRIC MEMBERSHIP CORPORATION and JBFH Corporation.
    No. 2003-OC-1560.
    Supreme Court of Louisiana.
    Aug. 12, 2003.
   In re JBFH Corporation; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, No. 470,349; to the Court of Appeal, First Circuit, No. 2002-CA-2281.

Denied.


text:
    CITGO PETROLEUM CORPORATION, Conocophillips Company, Inc. and the Lake Charles Harbor and Terminal District v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 2003-CC-2266.
    Supreme Court of Louisiana.
    Aug. 12, 2003.
   In re Citgo Petroleum Corp.; Conoco-phillips Co., Inc.; Lake Charles Harbor and Terminal Dist.; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish' of E. Baton Rouge, 19th Judicial District Court Div. A, No. 468,813; to the Court of Appeal, First Circuit, No. 2003 CW 1685.

Denied.


text:
    Darren MACK v. Lisa DIMARCO.
    No. 2003-CC-2254.
    Supreme Court of Louisiana.
    Aug. 13, 2003.
   In re Mack, Darren; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 564-313; to the Court of Appeal, Fifth Circuit, No. 2003-C-824.

Denied.

JOHNSON, J., would grant the writ.


text:
    STATE of Louisiana v. Derrick Todd LEE.
    No. 2003-KD-2261.
    Supreme Court of Louisiana.
    Aug. 13, 2003.
   In re Lee, Derrick Todd; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 06-03-655; to the Court of Appeal, First Circuit, No. 2003-KW-1705.

Denied.