author: FARMER, C.J. FARMER, C.J.

text:
    THYSSENKRUPP ELEVATOR CORPORATION, Appellant, v. Beatrice LASKY, Appellee.
    No. 4D03-2838.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.
    Opinion Denying Rehearing March 10, 2004.

      John R. Hargrove and Carol A. Gart of Heinrich, Gordon, Hargrove, Weihe & James, P.A., Fort Lauderdale, for appellant.
    Jane-Kreusler Walsh of Jane Kreusler-Walsh, West Palm Beach, and Malcolm A. Purow of Malcolm A. Purow, Weston, for appellee.
   FARMER, C.J.

Plaintiff was injured by an elevator door closing on her, causing her to fall and break her hip. Formerly in good health, she claimed she now has chronic pain and sought damages. After a four day trial, the jury awarded her $269,000 and found no comparative negligence. The issues on appeal relate to the process leading to the jury’s verdict and the propriety of entering judgment for past medical expenses that include charges eliminated by Medicare payment. We affirm the issue relating to the jury verdict but reverse on the damages issue.

The verdict is assailed as having been coerced by an improper Allen charge. The circumstances arose after the jury had deliberated for hours. The foreman advised the court that the jury “cannot come to an agreement” and asked whether their verdict had to be unanimous. At that point, and with the agreement of counsel, the court gave the standard Allen charge. The jury returned to the jury room but soon announced a verdict. Defense counsel asked that the jury be polled. Juror number one simply nodded her head without any verbal response. When asked what her response was, she said “I said ‘no’ the first time.”

At that point the trial judge said: “I have to have a unanimous verdict. I must send the jury back. The jury must be unanimous for the verdict.” Neither counsel objected at that point to the judge’s instructions in sending the jury back to deliberate. The jury then went back to the jury room. When the jury left, defense counsel said:

“Juror number one made it crystal clear. To send her back in there under pressure-now we know the other five said ‘yes’. She’s the lone hold out. She was shaking her head ‘no’. She didn’t want to go back in there with them. It isn’t her verdict, and we said it was going to be unanimous.”

The jury returned minutes later and announced the same verdict. The jury was again polled, and this time all jurors stated that they had agreed to the verdict. Defense counsel asked the court to inquire of juror one as to why she changed her mind, but the court denied the interview. The trial court also denied post trial motions for a new trial based on the contention that the verdict was coerced and for a reduction in the past medical expenses awarded for the amount of provider charges eliminated by payment from Medicare.

The coerced verdict issue was not preserved. Defendant failed to make a contemporaneous objection to the court’s instruction to return to deliberate, that the verdict had to be unanimous. Counsel’s statement after the jury left the courtroom — which we have quoted above — is not in the form of an objection and entirely omits any request for relief. Counsel did not ask for a mistrial. Moreover, while the judge was telling the jury that he was required to send the jury back, that a verdict must be unanimous, defendant made no objection to what he was saying. Defendant did not suggest any different formulation of words to use in instructing the jury. This is functionally indistinguishable from failing to object to an instruction actually given, and failing to suggest what the proper instruction should be.

We also point out that even if properly preserved, defendant has not shown an abuse of discretion by the trial judge when the juror initially indicated that the verdict was not hers. Alicot v. Dade County, 132 So.2d 302 (Fla. 3d DCA 1961). Moreover, when there is some question as to the process by which a verdict is returned, “a subsequent polling of the jury and their separate answers relieves the verdict from all objection.” 132 So.2d at 303. The juror was obviously not inhibited in stating objections to a verdict, for she freely did so the first time. The Allen charge made clear that she did not have to agree with the other jurors, that she was not being required to give up her conscientiously held view of the evidence. Her free assent to the final verdict evidences that she was not coerced. The trial court’s decision not to have her respond to questions as to why she joined in the verdict is supported by law. Brutton v. State, 632 So.2d 1080 (Fla. 4th DCA 1994).

We turn to the damages issue. Defendant seeks a reduction in the award of medical expenses equal to the amount by which a provider’s charges were reduced upon acceptance of payment from Medicare. Section 768.76(1) provides:

“In any action to which this part applies ... the court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant ... from all collateral sources; however, there shall be no reduction for collateral sources for which a subrogation or reimbursement right exists.”

§ 768.76(1), Fla. Stat. (2003). The parties do not dispute the fact that payment by Medicare requires the provider to whom payment is made to accept such amount in full satisfaction of the total charge even though the amount charged exceeds the amount paid by Medicare. Defendant emphasizes that as a matter of law plaintiff will never have to pay the difference between the amount charged by the provider and the amount the provider accepted from Medicare. The result, defendant argues, is that this difference is either inadmissible as “damages” suffered by plaintiff or that a setoff is required by section 768.76 because this is an unwarranted surplus damage awarded to plaintiff. We agree.

We find instructive the supreme court’s explanation in Florida Physician’s Insurance Reciprocal v. Stanley, 452 So.2d 514 (Fla.1984). In that case, plaintiff contended that its economic damages were slighted by the jury because of the admission of evidence as to the charitable and governmental sources for the special therapy and education needed by the injured minor plaintiff and available to his family at little or no cost regardless of who caused the injury. The defendant in that case árgued that evidence of free or low cost services from governmental or charitable agencies available to anyone with specific disabilities is admissible on the issue of future damages. In holding that such evidence did not violate the collateral source rule, the court explained:

“We believe that the common-law collateral source rule should be limited to those benefits earned in some way by the plaintiff. Governmental or charitable benefits available to all citizens, regardless of wealth or status, should be admissible for the jury to consider in determining the reasonable cost of necessary future care. Keeping such evidence from the jury may provide an undeserved and unnecessary windfall to the plaintiff. ...
[T]he policy behind the collateral-source rule simply is not applicable if the plaintiff has incurred no expense, obligation, or liability in obtaining the services for which he seeks compensation .... ‘It is a well-settled rule of damages that the amount recoverable for tortious personal injuries is not decreased by the fact that the injured party has been wholly or partly indemnified for the loss by proceeds from accident insurance where the tortfeasor did not contribute to the payment of the premiums of such insurance. ... In a situation in which the injured party incurs no expense, obligation, or liability, we see no justification for applying the rule.
(Quoting from Peterson v. Lou Bachrodt Chevrolet Co., 76 Ill.2d 353, 362-63, 29 Ill.Dec. 444, 448, 392 N.E.2d 1, 5 (1979)).” [e.s., c.oj

452 So.2d at 515-16. The same rationale was implicitly followed by this court in Dourado v. Ford Motor Co., 843 So.2d 913 (Fla. 4th DCA 2003), where we held that it was error to admit evidence of medical expenses not charged against the estate or paid by or on behalf of the decedent.

Allowing the admission of evidence of the excess discharged by Medicare payment has the effect of “provid[ing] an undeserved and unnecessary windfall to the plaintiff.” Stanley, 452 So.2d at 515. It would also be contrary to the public purpose of reducing health care costs to allow inflated damage recoveries to stand without reduction. We therefore conclude that defendant is entitled to have the past medical expenses awarded by the jury reduced — to the extent such amounts are actually included in the past medical expenses awarded — by the difference between the amounts charged by a provider and the amounts actually paid that provider by Medicare. On remand the trial court is authorized to receive such evidence as may be necessary to fix the precise amount of the reduction required by our decision today.

LIABILITY AFFIRMED; DAMAGES REVERSED.

WARNER and POLEN, JJ., concur.

On Motion Fob Rehearing

FARMER, C.J.

In denying motions for rehearing, we write to comment on plaintiffs post-opinion argument that the court’s decision in this case would allow a setoff for collateral sources and is contrary to the statute discussed. Our opinion contributed to this misapprehension about our precise holding, so we find it necessary to make our thinking clear.

The pertinent part of our opinion said:

“The result, defendant argues, is that this difference is either inadmissible as ‘damages’ suffered by plaintiff or that a setoff is required by section 768.76 because this is an unwarranted surplus damage awarded to plaintiff. We agree.”

We should have taken care to make clear that our agreement applied only to the evidentiary issue, not to any setoff argument. If this were only an issue of setoff, we might agree with plaintiffs motion for rehearing that some cases interpreting section 768.76(1) appear not to allow a setoff for this kind .of Medicare benefits.

In fact, however, defendant carefully raised this issue during trial as an objection to the admission of evidence of provider charges deemed satisfied by the provider’s acceptance of Medicare benefits. Thus the precise objection raised by defendant, which we hold should have been sustained by the trial judge, is that a plaintiff has suffered no damage from the higher charge by the provider when it later accepts Medicare payment in full satisfaction of the charge. Our reliance on Florida Physicians Insurance Reciprocal v. Stanley, 452 So.2d 514 (Fla.1984), demonstrates that we saw this as an issue pertaining to the admission of evidence, not really as a setoff. Thus our actual holding should be understood as an evidentiary ruling. When a provider charges for medical service or products and later accepts a lesser sum in full satisfaction by Medicare, the original charge becomes irrelevant because it does not tend to prove that the claimant has suffered any loss by reason of the charge.

With that clarification, we deny all motions.

WARNER and POLEN, JJ., concur.

      . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

      . One could argue there is no conflict with Goble v. Frohman, 848 So.2d 406 (Fla. 2d DCA 2003), review granted, 865 So.2d 480 (Fla. 2004), which involved HMO benefits rather than Medicare. To the extent that HMO benefits and Medicare benefits are interchangeable for this subject, however, we certify conflict.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Shari DANIELS, Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH, Appellee.
    No. 3D03-706.
    District Court of Appeal of Florida, Third District.
    Jan. 14, 2004.
    Solms & Price and Max R. Price, Miami, for appellant.
    Avron Bernstein, for appellee.
    Before COPE, GODERICH and SHEPHERD, JJ.
   PER CURIAM.

The petitioner, Shari Daniels, appeals from a final order of the Division of Administrative Hearings denying her amended petition for attorney’s fees, pursuant to the Florida Equal Access to Justice Act. § 57.111, Fla. Stat. (2002), based on the Administrative Law Judge’s [ALJ] finding that she is not a “small business party” as defined by section 57.111(3)(d). A review of the record shows that the administrative complaint was filed against the petitioner individually, rather than her corporation. On this basis, the ALJ’s denial of fees was proper. See Florida Real Estate Comm’n v. Shealy, 647 So.2d 151 (Fla. 1st DCA 1994); Department of Profl Regulation, Div. of Real Estate v. Toledo Realty, Inc., 549 So.2d 715 (Fla. 1st DCA 1989); Thompson v. Department of Health & Rehabilitative Servs., 533 So.2d 840 (Fla. 1st DCA 1988). Accordingly, we affirm but certify conflict with Albert v. Department of Health, Bd. of Dentistry, 763 So.2d 1130 (Fla. 4th DCA 1999), and Ann & Jan Retirement Villa, Inc. v. Department of Health & Rehabilitative Servs., 580 So.2d 278 (Fla. 4th DCA 1991).

Affirmed; conflict certified.


text:
    WEDGE HOTEL MANAGEMENT, (BAHAMAS), LTD., Appellant, v. Victor A. MEIER, etc., et al., Appellees.
    No. 3D03-1123.
    District Court of Appeal of Florida, Third District.
    Jan. 14, 2004.
    Rehearing Denied March 19, 2004.
    Wilson, Elser, Moskowitz, Edelman & Dicker and R. Layton Mank and Suzanne Brown-Vazquez, Miami, for appellant.
    Stearns Weaver Miller Weissler Alha-deff & Sitterson and Alan H. Fein and Joy Spillis Lundeen and Matthew W. Buttrick, Miami, for appellees.
    Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Wedge Hotel Management (“Wedge”) appeals from an order denying its motion to dismiss based on the doctrine of forum non conveniens. We affirm.

This case arises from a tragic boating accident in the Bahamas in which the plaintiffs right arm was severed. The plaintiff filed claims against several defendants, including Wedge, the appellant herein. Service was effected upon Wedge on June 15, 2001. On July 9, 2001, Wedge filed a Motion to Quash. That motion was denied on March 5, 2002. On May 6, 2002, Wedge filed a motion to dismiss for forum non conveniens. Wedge appeals from the denial of that motion. Because the motion to dismiss for forum non conveniens was untimely, we affirm.

Florida Rule of Civil Procedure 1.061(g) provides that “[a] motion to dismiss based on forum non conveniens shall be served not later than 60 days after service of process on the moving party.” Here, although service was effected upon Wedge on June 15, 2001, Wedge’s motion to dismiss for forum non conveniens was not filed until May 6, 2002, well past the sixty day time limit of 1.061(g). As Wedge’s motion was untimely under the plain language of 1.061(g), we need not address the merits of the arguments raised in the motion.

We are unpersuaded by Wedge’s contention that its July 9, 2002, Motion to Quash tolled the sixty-day forum non conveniens filing period. Tolling the filing period does nothing to promote the interests that the doctrine of forum non conveniens seeks to preserve, which includes avoiding a waste of resources, Kinney System, Inc. v. Continental Ins. Co., 674 So.2d 86, 94 (Fla.1996), and merely serves to encourage the filing of unnecessarily successive motions. In complying with Rule 1.061, a defendant should file an alternative motion to dismiss for forum non conveniens contemporaneously with the filing of a motion to quash service of process.

Accordingly, the order denying Wedge’s motion to dismiss for forum non conve-niens is affirmed.

      . We refrain from setting out the extensive procedural history of this case, as doing so is unnecessary to reach the issue currently before us.

      . Of course, even if not filed simultaneously with a motion to quash, the motion to dismiss for forum non conveniens is still timely so long as it is filed within sixty days of service of process on the moving party.


author: SHEPHERD, J.

text:
    Lawrence Gary CORNER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-2873.
    District Court of Appeal of Florida, Third District.
    Jan. 28, 2004.
    Rehearing and Rehearing En Banc Denied March 26, 2004.

      Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.
    Before GERSTEN, RAMIREZ, and SHEPHERD, JJ.
   SHEPHERD, J.

Defendant Lawrence Corner appeals his conviction on two grounds of error. Corner claims that his conviction for kidnapping was not sufficiently independent of the underlying crime of sexual battery to be considered as a separate count before the jury. He further charges the lower court with error for admitting evidence of former similar rapes under Williams v. State, 110 So.2d 654 (Fla.1959) and its progeny. We find no error on the kidnapping issue and affirm. Furthermore, from an appellate vantage point, we find no abuse of discretion on the admissibility of Williams type evidence and affirm. White v. State, 817 So.2d 799 (Fla.2002); Ray v. State, 755 So.2d 604 (Fla.2000).

Lawrence Corner is no stranger to the criminal justice system. Unfortunately, his prior entanglements, like the one at bar, have involved sexual misdeeds on minor girls. In the case sub judice, the victim, S.G., met the Defendant in November 1999 as she was walking along the street with one of her friends. She was only fifteen (15) years old at the time. The Defendant approached her to see if she could “do hair,” and informed her that he had an eight year old daughter in need of a stylist. The two apparently set up a time to render the hair services, but the appointment was not kept.

Several weeks later, the Defendant arrived at the home of S.G.’s godmother where S.G. was staying because her mother was in and out of rehab. In his vehicle, Defendant brought with him two of S.G.’s younger brothers and their friend. The Defendant approached the godmother and told her that he was a friend of S.G.’s family, and that he had come to take S.G. home to reunite her with her mother. Defendant also made promises that he was going to buy S.G. clothes and personal items. S.G. entered Defendant’s car, and he proceeded to drive her and her brothers to her mother’s house, where he let the brothers out, but stopped S.G. from leaving and drove off with her. Defendant then went to a secluded location at a nearby elementary school and parked the car. With the car doors locked, Defendant proceeded to rape S.G. After the assault, Corner returned the victim to her godmother’s house. Feeling dirty, S.G. showered and went to bed. The following day, the godmother confronted S.G., and immediately took her to the hospital. The medical report was consistent with vaginal penile penetration.

As previously indicated, history has a way of repeating itself for Corner. In February 1992, Corner had assaulted another minor female, S.F., who at the time was thirteen (13). He lured S.F. along with a friend into his car under the ruse of buying them a balloon. He then asked if they wanted food, and upon the friend’s profession of hunger, gave her some money and dispatched her to a nearby McDonald’s restaurant. As the friend exited the car, Corner grabbed S.F.’s arm and sped off to an abandoned duplex apartment where he forced her to pose nude for pictures and raped her.

Similarly, in July 1999, three months before assaulting S.G., Defendant approached another young girl, T.S., who was then sixteen (16) years old, as she was walking home from school. As with S.G., Defendant asked T.S. her name and if she could “do hair” for a niece, and offered her a ride home. Instead, he took her to an isolated park, made her pose nude under protest for photos, and then raped her.

The lower court allowed both T.S. and S.F. to testify in the trial where S.G. was the victim for the purpose of proving lack of consent on the part of S.G. and preparation or plan on the part of the defendant. The jury returned a verdict of guilty on the counts of sexual battery and kidnapping. We affirm.

The Defendant has urged this Court to find that his kidnapping and confinement of S.G. was inherent in and incidental to the nature of the sexual battery committed of her. We disagree. The Florida kidnapping statute was construed in Faison v. State, 426 So.2d 963 (Fla.1983), where the Supreme Court held:

[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
(a) Must not be slight, inconsequential and merely incidental to the other crime;
(b) Must not be of the kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.

Understandably, the rationale behind this rule is to preclude a second conviction for kidnapping when the confinement was merely a part of the underlying felony. Braggs v. State, 789 So.2d 1161, 1153 (Fla. 3d DCA 2001).

In this case, the movement or confinement of S.G. was not merely “a part of’ the underlying rape. The fact that S.G. did not expressly or vehemently resist remaining in the car does not infer that she consented to being in the vehicle after her brothers were dropped off and she was taken to the isolated school at nighttime. In Rancourt v. State, 766 So.2d 1071, 1073 (Fla. 2d DCA 2000), the court held that “[although the victim accepted a ride from [defendant], Rancourt essentially abducted her by traveling well beyond the predetermined destination without offering an explanation as to why.” Similarly here, S.G. testified that the Defendant stopped her from leaving the car when her brothers got out. He then drove around with her for some period of time before arriving at a secluded location, and committing the rape in the locked vehicle. The law is well established that where the movement or transportation of a victim is not inherent in the crime of sexual assault, a conviction for kidnapping will be sustained. Robinson v. State, 462 So.2d 471 (Fla. 1st DCA 1984) (kidnapping charge sustained where stranded motorist voluntarily accepted a ride from defendant only to be later taken to deserted area to be sexually assaulted); Ferguson v. State, 533 So.2d 763 (Fla.1988) (asportation was not inherent in the crime of robbery which could have been committed on the spot without any movement whatsoever).

In Robinson, the court interpreted kidnapping under Florida Statutes, section 787.01, as meaning

“secretly” confining, abducting, or imprisoning another person against that person’s will.... The term “secretly” means that the abduction or confinement is intended by the defendant to isolate or insulate the intended victim from meaningful contact or communication with the public.

Robinson at 476. The court specifically-stated that an act of transporting a victim “to an isolated area where there would be no possibility of meaningful contact with members of the public” would be “tantamount to ‘secretly’ abducting” and “legally sufficient to prove the kidnapping charge.” Id. In Carter v. State, 762 So.2d 1024, 1027 (Fla. 3d DCA 2000), we held that there was sufficient evidence to establish kidnapping where a defendant cornered the victim in a gym and directed her into a nearby hallway, such that “the effect was to hide the victim and defendant from the view of anyone who might enter the gym, thus making detection of the crime considerably more unlikely.” In Faison, 426 So.2d at 964, there was sufficient evidence to establish kidnapping where the victim was dragged from her desk in front of a large window to the rear of the same office to be raped, and then again into a nearby restroom to be raped again.

In this case, the testimony reveals that S.G. only accepted a ride to her mother’s house and did not consent to going any further. Corner whisked off S.G. in his vehicle to a secluded school at nighttime. S.G.’s ability to escape was curtailed by the car doors being locked prior to the rape and the ensuing crime was made less detectable by Corner’s choice of location. As such, there were sufficient actions of the transportation and selection of location which constitute the independent basis for the kidnapping charge, apart from the sexual battery. The fact that S.G., a minor, may not have quickly realized what was going to happen to her is of no legal consequence. The criminality resides in Corner’s actions of “confining or abducting of the victim with the intent to inflict bodily harm upon or terrorize the victim.” Carter at 1027, citing § 787.01, Fla. Stat. (Supp.1996). There was sufficient evidence for a jury to conclude beyond a reasonable doubt that S.G. was kidnapped. Sutton v. State, 834 So.2d 332 (Fla. 5th DCA 2003). Accordingly, the conviction for kidnapping is affirmed.

The Defendant also argues to this Court that the testimony of T.S. and S.F. and his interactions with them were irrelevant and prejudicial to his defense of his actions with S.G. Williams v. State, 621 So.2d 413 (Fla.1993), an offspring of the original Williams decision, found at 110 So.2d 654 (Fla.1959), allows the evidence of collateral crimes when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, common scheme or a general pattern of criminality. The Williams Rule is codified at § 90.404(2)(a), Fla. Stat. (2002).

The broad rule of admissibility is that subject to a few exceptions, all relevant evidence except as to character or propensity is admissible. Williams, 110 So.2d at 659. When considering collateral crimes for admissibility, “[t]he test of admissibility is relevancy,” and the “test of inadmissibility is lack of relevancy.” Id. at 659-60. “If the proffered evidence is relevant to a material fact in issue, it is admissible even though it points to a separate crime.” Id. at 660. This is so “whether the evidence tends to exculpate or convict, if it is relevant; that is, if it bears a certain relation to the crime charged to the extent that it is relevant to a fact in issue.” Id. at 661 (emphasis in original).

In the latter Williams case of 1993, we held that collateral crimes evidence of a prior sexual battery is permitted if it has “a logical relationship to some material aspect of the charged crime beyond the character of the defendant or his propensity to force himself on women.” Williams, 621 So.2d at 415. “Such evidence may be relevant to the issue of consent.” Id. at 416. In this case, consent became a pivotal issue. Corner was initially charged under §§ 800.04(4) and (5), Fla. Stat. (2002), with statutory rape, however, these counts were dropped, leaving this case in the posture of a standard sexual assault case under § 794.011(5), Fla. Stat. (2002), which generally hinges on whether or not the victim consented. Knowing “consent” would be the gravamen, Corner in his opening statement to the jury announced that his defense was to prove that S.G. consented to the sexual encounter. In Vitral v. State, 717 So.2d 65, 67 (Fla.3d DCA 1998), this court held that “no error occurs” where Williams type evidence is admitted “to refute the assertion that the victim consented to the affronts.” Accordingly, there was no error for admitting collateral evidence testimony to disprove the defense of consent.

Moreover, the testimony of S.F. and T.S. should have been admitted to affirmatively show that Defendant Corner was engaged in a common scheme, plan or preparation to take sexual license with minor girls, i.e. that there is a “logical relationship” between all three incidents. Williams, 621 So.2d at 415. In Varal, the defendant’s activities with others “were quite similar as to the time of day of the occurrences, lack of witnesses in his offices, sexual touching and kissing, and other relevant similarities,” such that the testimony was “classic Williams Rule evidence to show motive, common scheme and design.” Id. at 67. In the original Williams case, the court held that collateral evidence of a prior rape was admissible when “the accused had approached the other women in a manner very similar to his approach to the prosecutrix.” 110 So.2d at 662 (defendant had been able to rape prior victim and prosecutrix by hiding in the back seat of car).

Against this backdrop of well established Florida law, we find that in this particular instance, the modus operandi of Corner is sufficiently similar in all three of his sexual encounters with minor females. From his smooth approach to initiate contact under the facade of needing a hairstylist for a girl relative, to his tactic of luring victims into his vehicle under the false assurances of a buddy system, to his seductive promises of buying items which a minor girl might want, to his transporting them to secluded locations, all show a criminal mind prepared and engaged in a plan to take sexual offense at unsuspecting minor girls. Undoubtedly, a common thread weaves together these three unfortunate episodes. We find no error or abuse of discretion for allowing in the Williams type testimony of S.F. and T.S.

Affirmed.


author: SHEVIN, Judge. SCHWARTZ, Chief Judge

text:
    Audria D. GENSLER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3019.
    District Court of Appeal of Florida, Third District.
    Jan. 28, 2004.
    Rehearing Denied March 24, 2004.

      H. Dohn Williams, Jr. (Boca Raton), for appellant.
    Charles J. Crist, Jr., Attorney General, and John D. Barker, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., LEVY and SHEVIN, JJ.
   SHEVIN, Judge.

Audria D. Gensler appeals her conviction and sentence for vehicular homicide. We reverse and remand for a new trial.

Metro-Dade Police Officer Audria D. Gensler was dispatched to assist in a disturbance call at 3:00 a.m. On route to the call, her patrol car struck a pedestrian who was standing in the right through traffic lane on South Dixie Highway. The victim was then run over by another vehicle. Prior to trial, the court prohibited introduction of any evidence regarding the victim’s alcohol and cocaine intoxication, which the medical examiner had opined was sufficient to impair the victim’s judgment. The court also prohibited testimony that it was common practice for prostitutes in that area to step out into the path of oncoming vehicles to get the drivers to stop.

The speed at which the officer’s car was traveling prior to impact was highly contested at trial. The court permitted a medical examiner—who did not perform the autopsy—to testify, over defense objection, that the injuries to the body were consistent with having been hit by a vehicle traveling at 80 miles per hour. The examiner canvassed his co-workers and based his opinion on their collective ideas in view of victim injuries in other cases. Another expert testified that the car was traveling at 65 miles per hour. There was also testimony that the victim’s death was inevitable, regardless of the vehicle’s speed at the time of impact. Furthermore, the state was allowed to introduce evidence that Officer Gensler had been dispatched on a false alarm, and that she was using a cellular phone some time before the accident. Officer Gensler was convicted of vehicular homicide. Officer Gensler appeals.

A reversal is required in this case because of the many evidentiary errors. The trial court abused its discretion in excluding evidence of the deceased’s crack cocaine and alcohol intoxication on the night of the accident, and testimony that area prostitutes commonly step into the path of oncoming vehicles. This information is relevant to the defendant’s version of the events and explanation of the accident, and tends to demonstrate that the defendant may not be at fault for causing the accident. See Persaud v. State, 755 So.2d 150 (Fla. 4th DCA 2000); Bush v. State, 543 So.2d 283 (Fla. 2d DCA), review denied, 548 So.2d 663 (Fla.1989). At the defendant’s new trial, this evidence shall be permitted.

Second, the court erred in permitting the medical examiner to testify as to the defendant’s rate of speed at the time of the accident based on the victim’s injuries. The medical examiner stated that such a conclusion was beyond his field of specialty, and there was no predicate for admitting this testimony. See Laffman v. Sherrod, 565 So.2d 760 (Fla. 3d DCA 1990).

Finally, it was also an abuse of discretion to allow the introduction of evidence regarding defendant’s violation of various police department protocols, the case’s notoriety, defendant’s use of her cellular telephone before the accident, and that defendant was responding to a call that was later declared a false alarm. This evidence was not inextricably intertwined with the charged crime. In addition, this evidence was not relevant to any issue in the case, and was unfairly prejudicial to the defendant and deprived her of a fair trial. See Stephens v. State, 787 So.2d 747 (Fla.)(relevant evidence has logical tendency to prove or disprove a fact of consequence to the outcome of the case), cert. denied, 534 U.S. 1025, 122 S.Ct. 556, 151 L.Ed.2d 431 (2001).

Moreover, any mention of police department protocols regarding lunch break procedures, or use of emergency lights, and the emphasis placed on this evidence at closing argument, was improper. Although this case does not involve the introduction of police manuals, per se, the prosecution’s introduction of the department protocols created a “false standard in the measure of reckless driving[,]” Lozano v. State, 584 So.2d 19, 24 n. 8 (Fla. 3d DCA 1991)(citing Pitts v. State, 473 So.2d 1370 (Fla. 1st DCA 1985)), review denied, 595 So.2d 558 (Fla.1992), an element of the vehicular homicide offense with which the defendant was charged. This evidence permitted the jury to hold the defendant to a higher standard than that to which any ordinary citizen would have been held.

Based on the foregoing, we reverse the conviction and sentence, and remand for a new trial.

LEVY, J., concurs.

SCHWARTZ, Chief Judge

(specially concurring in part, dissenting in part).

While I disagree with the majority as to the other evidentiary points it relies upon, because I think that they involve either no error, no harm, or both, I concur in reversal solely because of the exclusion of evidence concerning the decedent’s drug and alcohol use prior to the accident. I would agree that, in the “ordinary” case, such evidence is properly excludable because it does not directly relate to any pertinent issue, including that of legal cause. See Filmon v. State, 336 So.2d 586 (Fla.1976), cert. denied, 430 U.S. 980, 97 S.Ct. 1675, 52 L.Ed.2d 375 (1977); Palmer v. State, 451 So.2d 500 (Fla. 5th DCA 1984), pet. for review denied, 461 So.2d 115 (Fla.1985). In this instance, however, in an attempt to carry its burden of proving the vital element that the defendant’s excessive speed was a legal cause of the accident, the state affirmatively introduced “expert” testimony that a normal person would have been able to see and get out of the way of a vehicle traveling at a reasonable speed, but presumably could not have done so when confronted with one, like the defendant’s, traveling at eighty to ninety miles per hour. In these circumstances, it was obviously appropriate, indeed vital, to show that this decedent was not an ordinary citizen, but one apparently incapable of protecting herself because of her consumption of drugs and alcohol. See Smith v. State, 65 So.2d 303 (Fla.1953); Persaud v. State, 755 So.2d 150 (Fla. 4th DCA 2000).

      . This is particularly true of the ruling that evidence of the defendant's alleged violation of certain police rules was improperly admitted. Specifically unlike Lozano, in which the police manual which was introduced into evidence to demonstrate the standard of care required of policemen in the commission of the very acts of which he was accused, the defendant’s violation of the rules in this case was merely admitted to show a motivation for her alleged excessive speed. I think that was perfectly appropriate.

      . In the light of the fact that there was no evidence whatever as to how the decedent got into the roadway or her reactions thereafter, I think that there may have been a total absence of evidence of legal cause in this case, so that a directed verdict might have been appropriate. It is not necessary, however, further to explore the issue, since the point was not presented on appeal because, we were told at oral argument, appellant's counsel did not consider that it had been appropriately preserved below.


text:
    Gladys M. LOPEZ, Petitioner, v. Paul H. BASS, Respondent.
    No. 3D03-2535.
    District Court of Appeal of Florida, Third District.
    Jan. 28, 2004.

      Lopez & Best, and Virginia M. Best, Miami, for petitioner.
    Paul H. Bass, for respondent.
    Before LEVY, GERSTEN, and RAMIREZ, JJ.
   PER CURIAM.

This is a Petition for Writ of Certiorari challenging an order denying the motion of petitioner (appellee at the circuit level) to accept the answer brief as timely filed. Petitioner alleges that the second motion for enlargement of time to file answer brief was denied on July 9, 2003, but petitioner’s counsel never received the order. The order did not give petitioner a deadline within which to file the brief. Petitioner filed her brief on July 21, 2003, but the circuit court refused to accept the brief as timely.

We deny certiorari without prejudice because at this point petitioner cannot show irreparable harm. Even though her brief has been refused, she may still prevail on the merits of her appeal.


author: ERVIN, J.

text:
    Lethie LANHAM, Appellant, v. DEPARTMENT OF ENVIRONMENTAL PROTECTION and Florida Department of Insurance Risk Management/WC Claims, Appellees.
    No. 1D03-0257.
    District Court of Appeal of Florida, First District.
    Feb. 2, 2004.
    Rehearing Denied March 31, 2004.
    Terry P. Roberts, David G. Sullivan, and Jayson A. Chizick of Anderson, Culliton & Sullivan, P.A., Tallahassee, for Appellant.

      William W. Blue of Cooper, Byrne, Blue & Schwartz, Perry, for Appellees.
   ERVIN, J.

This is an appeal from a final workers’ compensation order denying compensability of an accident occurring after the effective date of section 440.02(32), Florida Statutes (Supp.1994), defining the term “arising out of,” for the reason that the claimant’s accident did not satisfy such definition. Because the decision below turns on an interpretation of law, our review standard is de novo. We conclude that the construction by the judge of compensation claims (JCC) is erroneous, requiring reversal.

Claimant, Lethie Lanham, while employed by the Department of Environmental Protection (DEP), tripped and fell on a sidewalk about a quarter of a mile from her office during a work break on April 4, 2000, injuring her right hip, wrist, and hand. The sidewalk circles the complex where DEP is located and was not on DEP premises. In reaching his decision, the JCC recited the following stipulated facts:

1. Employee was on break at the time of her injury.
2. Employee was not on the employer’s premises at the time of her injury.
3. Employee was not performing any task or errand for the employer at the time of her injury.
4. At the time of her injury, employee was still subject to the control of employer to the extent that employee’s supervisor could have called her back to work before finishing her break.
5. Employer provided no limitations on where employee went during her breaks provided that employee could return to work within 15 minutes.
6. Employee was paid for the time she spent on break.
7. Employees get two 15-minute breaks each day, one in the morning, and a second break after lunch. Employees are not required to use a time clock to time their breaks. They are on the honor system, and trusted to return to work on time.
8. Employer provided no limitations on the types of activities employee engaged in during her breaks provided that employee could return to work within 15 minutes.

The JCC concluded that because claimant was not on the employer’s premises when she was injured, and neither proved that she was performing work, nor that her activity was preparatory or incidental to the performance of her duties, she could not be considered to be within the course and scope of employment at the time she suffered her accidental injuries. In support of his decision, the JCC cited this court’s interpretation of section 440.02(32) in Vigliotti v. K-mart Corp., 680 So.2d 466 (Fla. 1st DCA 1996). The statute provides:

“Arising out of’ pertains to occupational causation. An accidental injury or death arises out of employment if work performed in the course and scope of employment is the major contributing cause of the injury or death.

The JCC misconstrued the effect of both Vigliotti and section 440.02(32).

Vigliotti explained that in order for an accidental injury to occur, the statute requires the existence of two elements: (1) the work must have been performed in the course and scope of employment, and (2) the work must be the major contributing cause of the accident or injury. Id. at 467-68. As to the first prong, the court decided that the new definition, as incorporated within the 1994 amendments, did not change prior case law interpreting the phrase “in the course and scope of employment,” because no modification of substance had been made regarding the related statutory terms “employment,” “injury,” or “accident.” Id. at 468.

The JCC was apparently of the view that as a result of the newly created definition of “arising out of,” accidental injuries suffered by an employee off the work premises while taking a short, employer-approved rest break are no longer com-pensable in that former decisional law that had so held has now been legislatively repealed. As Vigliotti clearly stated, such effect has not occurred. As a consequence, this court’s prior decisions upholding the compensability of such injuries remain unimpaired. See Bayfront Med. Ctr. v. Harding, 653 So.2d 1140, 1142 (Fla. 1st DCA 1995) (“Claimant’s off-premises act in reasonable pursuit of personal comfort needs during employment hours, and at a place condoned by the employer, was not a deviation from his work.... ”); Holly Hill Fruit Prods., Inc. v. Krider, 473 So.2d 829, 830 (Fla. 1st DCA 1985) (“An employer-condoned off-premises refreshment break of insubstantial duration is generally not such a deviation as to remove a claimant from the course and scope of the employment.”); Cooper v. Stephens, 470 So.2d 852, 855 (Fla. 1st DCA 1985) (commenting that if the accident had occurred while claimant was on his way to a coffee break, it “should be considered incidental to business generally’).

Similar to employees who left their workplace to obtain coffee, cigarettes, or snacks, Lanham briefly left the employer’s premises for personal refreshment. Her 15-minute break was of insubstantial duration; DEP paid its employees during the breaks; Lanham was subject to DEP’s control in that she could at any time have been required to work rather than be allowed the time away from her employment. Moreover, her walk was not a substantial personal deviation, but occurred close to DEP premises and was tacitly condoned by DEP. See City of Miami v. Dwight, 637 So.2d 981, 983 (Fla. 1st DCA 1994) (quoting 1 A. Larson, The Law of Workmen’s Compensation § 15.51 (1993)). As such, we conclude that claimant’s accident occurred within the course and scope of employment, thereby satisfying the first prong in Vigliotti.

The JCC also decided that Lanham failed to satisfy the major-contributing-cause element of Vigliotti because she presented no evidence that “her employment constituted the major contributing cause of her injury or otherwise contributed an increased risk of the accident itself or the injury.” This too was error. In that the record discloses there was only one cause of claimant’s injuries, rather than competing causes, claimant was not required to present additional evidence going to the issue of whether the work-related accident was the major contributing cause of the injuries. See Tanguilan v. PMI Employee Leasing, 832 So.2d 176 (Fla. 1st DCA 2002); La. Pac. Corp. v. Harcus, 774 So.2d 751 (Fla. 1st DCA 2000).

REVERSED.

BARFIELD and POLSTON, JJ., concur.

      . At the time of claimant’s injury, the definition was found at section 440.02(35), Florida Statutes (2000).


text:
    STATE of Florida, Petitioner, v. Jennifer SCHREIBER, Respondent.
    No. 4D03-3934.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 2004.
    Rehearing Denied April 16, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for petitioner.
    Lawrence C. Roberts of Lawrence C. Roberts, P.A., Fort Lauderdale, for respondent.
   PER CURIAM.

The State of Florida petitions this court for certiorari review of a Broward County Circuit Court order which granted respondent Jennifer Schreiber’s petition for writ of prohibition and remanded her case to the Broward County Court for an order of discharge. For reasons which follow, we grant certiorari and quash that order.

Respondent Jennifer Schreiber was charged by information with two misdemeanors, driving under the influence (with property damage) and driving under the influence. She moved to suppress the results of her blood test, and filed a motion to dismiss as well, apparently moving to strike a UBAL allegation from the information as an alternative theory of prosecution. The State moved ore terms to transfer the case to the central courthouse to accommodate the request to have the case tried by jury. The case was transferred accordingly and reassigned. The reassigned judge later recused himself. The ease was transferred to a successor judge.

On July 3, 2001, respondent filed a Notice of Expiration of Time for Speedy Trial, based on Florida Rule of Criminal Procedure 3.191. The trial court held the five-day hearing required by the rule. The trial court ordered that respondent be brought to trial within ten days. It set the case for trial on July 18, 2001, the fifteenth day of the window recapture period. The day before that was reserved for hearing pending motions. At that hearing, the trial court granted respondent’s motion to suppress blood samples obtained by the Davie Police Department, and granted her motion to strike certain language from the information. The state sought to appeal these trial court orders, and filed a motion for extension of time on July 18, 2001, for trial pending appeal and after mandate, pursuant to Florida Rule of Criminal Procedure 3.191(i)(4). The trial court granted the motion for extension.

On July 18, 2001, the State filed its notice of appeal upon a question certified to this district court from the county court. After rehearing, this court issued its final decision and opinion in State v. Schreiber, 835 So.2d 344 (Fla. 4th DCA 2003), affirming in part and reversing in part with remand to the trial court. Mandate issued February 7, 2003.

Before the appeal was decided, on July 19, 2001, respondent moved for final discharge, and the trial court denied the motion on that date.

Once the appeal was decided, on April 1, 2003, respondent filed, in the circuit court, a petition for writ of prohibition to prohibit the trial court from exercising any further jurisdiction over the case beyond an order discharging her from prosecution. Respondent argued that the State’s motion for extension of time pending appeal was not legally or procedurally valid because it was not filed until the five/ten-day recapture window period under Florida Rule of Criminal Procedure 3.191. The circuit court agreed with respondent and granted prohibition. The circuit court judge ordered the case remanded to the county court for entry of an order discharging respondent.

First, this case is renewable by certiorari pursuant .to State v. Frazee, 617 So.2d 350 (Fla. 4th DCA 1993). The standard of review for a petition for writ of certiorari filed from a decisión of the circuit court rendered in its appellate capacity is whether the court denied the petitioner procedural due process and whether the court departed from the essential requirements of law in such a way as to cause a miscarriage of justice. See Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530-31 (Fla.1995). See also Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003); Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000). In Heggs, the supreme court said that the term “ ‘applied the correct law' is synonymous with ‘ob-' serving the essential requirements of law.’ ” ' 658 So.2d at 530.'

No procedural due process argument is raised here. Petitioner State argues that the circuit court departed from the essential requirements of law in this case in finding that the county court did not have authority to stay the proceedings and extend speedy trial under Florida Rule of Criminal Procedure 3.191(i)(4). Petitioner argues that it intended to.take an interlocutory appeal to the circuit court from the orders on suppression and the motion to dismiss part of the information, and that the speedy trial window period had not expired. Thus, extension of speedy trial was authorized.

■ Florida Rule of Criminal Procedure 3.191(i)(4) provides in part:

■ (i) When Time May be Extended. The periods of time established by this rule may be extended, provided the periods of time sought to be extended has not expired at the time the extension was procured. An extension may be procured by:
(4) written or recorded order of the court for a period of reasonable and necessary delay resulting from proceedings including but not limited to an examination and hearing to determine the mental competency or physical ability of the defendant to stand trial, for hearings on pretrial motions, for appeals by the state, and for trial of other pending criminal charges against the accused.

The State’s motion for extension of speedy trial in this case falls under (i)(4) in that the request for extension was to allow the State to appeal the county court’s order on the motion to suppress. The question here is whether the State may move for its extension of speedy trial in order to appeal within the fifteen-day recapture period in the rule.

In granting prohibition, the circuit court acknowledged that speedy trial time had expired on July 3, 2001, but that at the time that the State filed its motion for extension of speedy trial time pending appeal and after mandate, the five/ten-day recapture period had not expired. However, the circuit court ruled that the county court had erred in granting the State’s motion for extension of speedy trial time pending appeal because it was filed after expiration of the original speedy trial period, and was not based on exceptional circumstances under rule 3.191 (l).

The circuit court relied heavily on this court’s State v. Eubanks, 630 So.2d 200 (Fla. 4th DCA 1993), rev. denied, 639 So.2d 977 (1994). There, we reversed an order of the trial court granting a defendant’s motion for discharge for speedy trial violation because the trial court had failed to order the State to bring the defendant to trial within ten days after the hearing on the motion for discharge. We found that the trial court lacked the authority to grant the State’s motion to stay and extend speedy trial while the State petitioned the Supreme Court of Florida for further review, because the original 175-day speedy trial time had expired. However, we also concluded that the trial court had erred in granting an automatic discharge. Instead, it should have done so only after allowing the State to bring the defendant to trial within the window period under the rule.

Further, Eubanks was followed by the Florida Supreme Court’s decision in Brown v. State, 715 So.2d 241 (Fla.1998), in which the court held that the State had the right to move for an extension of the original 175-day speedy trial period “so long as the time period sought to be extended has not expired at the time the extension is requested.” Id. at 243. The court said that because the ten-day recapture period had not expired, the extension allowed was indeed valid.

This ruling and interpretation of rule 3.191(i) by the Supreme Court does appear, as petitioner State argues, to reject this court’s narrower construction as articulated in Eubanks. Petitioner contends that Brown thus overrules Eubanks on this point, sub silentio.

The Supreme Court based its interpretation and conclusion in Brown on the plain language of Florida Rule of Criminal Procedure 3.191(i). It also resolved the conflict certified to it between the first district in the Brown case and decisions of this court in Vallieres v. Givssman, 573 So.2d 196 (Fla. 4th DCA 1991) and the third district in Heller v. State, 601 So.2d 642 (Fla. 3d DCA 1992), the latter two cases which had announced a blanket rule that a motion for exceptional circumstance extension can only be granted if filed during the 175-day speedy trial period. The Supreme Court’s decision in Brown expressly disapproved of Vallieres to the extent that it conflicted with its interpretation that the extension could be granted as long as the speedy trial time and recapture period had not expired.

It is true that this ease does not invoke the exceptional circumstances portion of rule 3.191. However, Brown also interpreted section 3.191(i), which does apply here. It expressly interpreted this section of the rule to authorize a State motion for extension of speedy trial time, as long as it is made during speedy trial time including the 10-day recapture period.

The circuit court ruled in the instant case that Brown was “confined to the narrow issue of whether an exceptional circumstances exception made during the 5/10 day recapture window was valid.... ” Petitioner argues that the circuit court departed from the essential requirements of law in so limiting its construction of Brown, and we agree. There would be no rationale for imposing one interpretation of the time permitted for a request for extension if made on one ground (the need for a State appeal) and yet another, broader interpretation of the time permitted for a request for extension if based on the exceptional circumstances exception.

Petitioner notes that court rules such as this one are subject to the same rules of construction as are statutes. Castillo v. Vlaminck de Castillo, 771 So.2d 609 (Fla. 3d DCA 2000) (citing Syndicate Props., Inc. v. Hotel Floridian Co., 94 Fla. 899, 114 So. 441 (1927)). To adopt the inconsistent constructions of the rule as urged by respondent, and applied by the circuit court, would violate the basic dictates of these rules of construction in that it would lead to an absurd result. See generally Baldwin v. State, 857 So.2d 249 (Fla. 2d DCA 2003).

Therefore, we grant this petition for writ of certiorari, quash the circuit court’s order granting prohibition, and remand this case to the county court for further proceedings.

POLEN, STEVENSON and MAY, JJ., concur.


text:
    James Robert SHORT, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellees.
    No. 3D03-2403.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    Rehearing Denied March 19, 2004.
    James Robert Short, in proper person.
    John D. Maher (Tallahassee), for appel-lee Unemployment Appeals Commission.
    Before SCHWARTZ, C.J., and GREEN, J., and BARKDULL, THOMAS H., Jr., Senior Judge.
   PER CURIAM.

Affirmed. See § 59.041, Fla. Stat. (2003); Smith v. Unemployment Appeals Comm’n 698 So.2d 1344 (Fla. 5th DCA 1997).


author: COPE, J.

text:
    Jeffrey I. JACOBS, Appellant, v. Jill E. JACOBS, Appellee.
    No. 3D02-2260.
    District Court of Appeal of Florida, Third District.
    Feb. 11, 2004.
    Rehearing Denied March 26, 2004.

      Greene, Smith & Associates, P.A., and Cynthia Greene, Miami, for appellant.
    Bette E. Quiat; Jay M. Levy, Miami, for appellee.
    Before COPE, GODERICH, and FLETCHER, JJ.
   COPE, J.

Jeffrey I. Jacobs appeals an order modifying his child support obligation. We affirm in part and reverse in part.

I.

The appellant former husband and ap-pellee former wife were married in 1989 and divorced in 1998. Three children were born of the marriage.

The parties’ marital settlement agreement provided for $1,500 per month child support. If the former husband’s income exceeded certain amounts, then the former husband would pay private school tuition for the children. The former husband also agreed to purchase a Florida prepaid college tuition contract for each child.

In April 1998, a divorce decree was entered incorporating the marital settlement agreement. In 1999, the former wife filed a motion for relief from judgment under Rule 12.540, Florida Family Law Rules of Procedure. She claimed that she had been misled as to the former husband’s true financial position. She also filed a motion for modification of child support on the basis of an increase in the former husband’s income.

The trial court granted an upward modification of child support. As we interpret the order, the court also granted relief from judgment regarding certain items of child support.

The former husband has appealed.

II.

The court conducted an evidentiary hearing on the former wife’s claims. The husband and wife are both lawyers, and both had the assistance of counsel in entering into the marital settlement agreement.

With regard to the motion for relief from judgment, the trial court concluded that the former wife had access to the correct information regarding the former husband’s financial position at the time of the negotiation of the marital settlement agreement. As we interpret the court’s order, the court granted an involuntary dismissal of the former wife’s fraud claim on all issues except child support.

However, based on Wilkes v. Wilkes, 768 So.2d 1150 (Fla. 2d DCA 2000), the court concluded that as relates to child support, a court may grant relief from judgment where it is demonstrated that there has been a material error in the calculation of the child support guidelines — even if there has been no fraud. The Wilkes opinion appears to authorize such a procedure, even where the payee former spouse had actual knowledge of, or access to, the correct financial information.

For 1998 — the year the judgment was entered — the trial court ruled that child care expenses for summer camp, uncovered medical expenses, and tutoring should be paid in proportion to the parties’ respective incomes. The marital settlement agreement had made these largely the responsibility of the former wife alone, thus, the court granted a limited amount of relief from judgment under the Wilkes decision.

It is our view that Wilkes does not survive the later opinion of the Florida Supreme Court in Macar v. Macar, 803 So.2d 707 (Fla.2001). Given the trial court’s conclusion that the former wife had access to all of the material financial information, the Macar decision dictates that the motion for relief from judgment should have been denied entirely. We therefore reverse the order now before us to the extent that it reopened the 1998 judgment. This means that the parties’ marital settlement agreement is controlling for the time period prior to the effective date of the modification.

III.

We affirm the modification order. Modification was granted effective as of the date of filing the petition, which was August 16,1999.

Paragraph 61.30(l)(b), Florida Statutes (1999), provides:

(b) The guidelines may provide the basis for proving a substantial change in circumstances upon which a modification of an existing order may be granted. However, the difference between the existing monthly obligation and the amount provided for under the guidelines shall be at least 15 percent or $50, whichever amount is greater, before the court may find that the guidelines provide a substantial change in circumstances.

Id. (Emphasis added)

The parties acknowledge, and we agree, that this statute applies to child support which has been established by agreement, as well as child support which has been court ordered. See id.; State Dept. of Revenue v. Sumblin, 675 So.2d 691, 692 (Fla. 1st DCA 1996). In this case, the fifteen percent “trigger” of the statute was satisfied. The trial court properly granted the petition for modification.

The former husband argues that the trial court erred by disallowing his claims for certain credits against the child support amounts owed. The most significant of these is a mandatory stock purchase requirement under the terms of the shareholders agreement in the former husband’s professional association. The agreement requires the former husband for several years to use the first $25,000 of his year-end share of firm profits to buy additional stock in the professional association. The husband argues that the $25,000 annual amount should be treated as a business expense under the child support guidelines and should not be included in his available income. See § 61.30(2)(a)3., Fla. Stat. (1999). We agree with the trial court, however, that since this transaction results in the acquisition of an additional asset—additional stock in the professional association—it is not properly viewed as a deductible business expense for purposes of the guidelines. Thus, the credit was properly disallowed.

Under the parties’ agreement the former husband is required to pay the expenses for the Florida college prepaid tuition program by the time each child reaches the age of thirteen. The former husband has elected to purchase those contracts early, which apparently allows the contracts to be purchased at lower cost. The former husband argues that he should be given credit against his other child support obligations for satisfying these obligations early. We disagree and conclude that the trial court correctly disallowed any such credit. Since the former husband must buy the contracts in any event, the former husband’s decision to prepay those amounts does not create any entitlement to set off those costs against the other child support expenses that the husband is required to pay.

The modification order also ruled that the former wife would be entitled to attorney’s fees for the modification proceeding, and reserved jurisdiction to set the amount. The former husband maintains that fees should not have been awarded. The former wife argues that this issue is premature until such time as an amount has been set.

After the briefs were filed, the trial court entered a judgment setting the attorney’s fee amount. As briefing of the present appeal was already completed before the attorney’s fee amount was set, we decline to entertain any issue regarding attorney’s fees. This ruling is without prejudice to the parties to proceed by separate appeal from the attorney’s fee judgment.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

      . The parties agreed to exchange financial information each year so long as the child support obligation remained outstanding.
      Although not pertinent here, the other main features of the marital settlement agreement were the agreed sale of the parties' marital home, the agreed division of the parties’ personal property, a waiver of alimony, and a relinquishment by the wife of any interest in the former husband's law practice.

      . The trial court ruled alternatively that there had been no meeting of the minds regarding payment of these expenses. We respectfully disagree, as the marital settlement agreement contains an explicit provision on each item.

      . The statute was amended to this effect in 1993. See ch. 93-208, § 5, Laws of Fla.


author: GERSTEN, J.

text:
    Adriaan ANGELUS, Appellant, v. Henry I. PASS, Esquire, Appellee.
    No. 3D03-1768.
    District Court of Appeal of Florida, Third District.
    Feb. 11, 2004.
    Wolfe & Goldstein, and Pathman Lewis, and Richard Wolfe, Miami, and Marc Pug-liese, Coral Gables, for appellant.

      Greenberg Traurig, and Elliot H. Scherker, and Marlene K. Silverman, and Barry Rothberg, Miami, and Pamela A. DeBooth, for appellee.
    Before GERSTEN, RAMIREZ, and SHEPHERD, JJ.
   GERSTEN, J.

Appellant, Adriaan Angelus (“Angelus”), appeals an adverse order denying her petition to remove appellee, Henry Pass (“Pass”) from serving as personal representative of the estate of her deceased mother. We reverse.

Angelus’s mother passed away on December 25, 2001. Her will nominated Pass, an attorney, as co-personal representative of the estate, and provided that neither personal representative was to receive any fees or commissions. Six days later, Pass filed a petition for administration which admitted that Pass was a nonresident of Florida, but verified under oath that Pass was the decedent’s nephew. Relying upon these representations made under oath, the trial court entered an order admitting the will to probate and appointing Pass as co-personal representative. Thereafter, Pass filed a motion to renounce the will’s compensation provisions by electing to be compensated for services under Section 733.617, Florida Statutes (2003).

Angelus, who is a resident of New Zea-land, filed a motion to strike the letters of administration and a petition for Pass’s removal approximately fifteen months later. Angelus, the decedent’s only child and one of the residuary legatees, claimed Pass was legally prohibited from serving as personal representative under Section 733.304, Florida Statutes (2003). Section 733.304 provides that a nonresident cannot qualify as personal representative unless the nonresident is a “spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity.” § 733.304(3), Fla. Stat. (2003).

Angelus sought to strike the letters of administration on the basis that Pass was a nonresident, did not have a blood relationship to the decedent, and had in fact made misrepresentations to the contrary. Angelus also claimed Pass had several conflicts of interest with the decedent’s estate, and sought repayment of the personal representative’s fees paid to Pass, as well as repayment of the administrative expenses paid to Pass’ counsel.

At the hearing on the motions, Pass admitted he was the blood nephew of the decedent’s former husband, and not of the decedent. However, he claimed he did not know of the requirements of Section 733.304, and that the removal petition should be dismissed because it had not been filed within the three-month time period required by Section 733.212, Florida Statutes (2003). Section 733.212 states that: “Any interested person on whom a copy of the notice of administration was served must object to ... the qualifications of the personal representative ... within three months after the date of service ... or those objections are forever barred.”

The trial court agreed with Pass, and denied Angelus’s petition as untimely on the basis no objection had been raised during the statutory three-month time period. The trial court further noted that during the fifteen months Pass had served as personal representative, Pass had at all times acted for the benefit of the estate.

While we agree with the trial court’s findings that Pass’s services as personal representative did not harm the estate, we disagree with the conclusion that Section 733.212 can be applied to allow a legally unqualified personal representative to escape the requirements of Section 733.304 and Florida Probate Rule 5.310. Florida Probate Rule 5.310 places the burden on the personal representative, as a fiduciary, to provide notice in the event the personal representative is not qualified to serve. See also § 733.3101, Fla. Stat. (2003). Rule 5.310 specifically states:

“Any personal representative who was not qualified to act at the time of the appointment or who would not be qualified for appointment if application for appointment were then made shall immediately file and serve on all interested persons a notice.... The personal representative’s notice shall state that any interested person may petition to remove the personal representative.”

See Fla. Prob. R. 5.310 (emphasis added).

The trial court erred in denying the motion to strike and petition for removal because Pass was never qualified to serve under Section 733.304. See In re Greenberg’s Estate, 390 So.2d 40 (Fla.1980). Pass is expressly prohibited from serving as personal representative because Pass is a nonresident nephew-in-law. See In re Estate of Angeleri, 575 So.2d 794 (Fla. 4th DCA 1991)(nephew is related by collateral consanguinity not linear consanguinity); In re Chadwick’s Estate, 309 So.2d 587 (Fla. 2d DCA 1975). Thus under Section 733.304 and Rule 5.310, Angelus, as an interested party, properly petitioned to remove Pass as personal representative.

The three-month statute of limitations period contained in Section 733.212(3) does not apply to bar Angelus’s petition because Pass was never legally qualified to serve as personal representative at any time. The legislature has enacted separate and distinct statutes dealing with the commencement of administration, and with the qualifications required of a personal representative. There is no time limit specified by the qualifications statutes. See §§ 733.304, 733.3101, Fla. Stat. (2003). We find no basis to engraft the three-month limitation of the commencing administration statute onto the explicit provisions of the qualifications statute nor upon Rule 5.310, particularly where the applicant was never otherwise legally qualified to serve. See In re Estate of Anderson, 583 So.2d 801 (Fla. 1st DCA 1991); Pontrello v. Estate of Kepler, 528 So.2d 441 (Fla. 2d DCA 1988).

To do so would render Rule 5.310 meaningless and would improperly shift the burden of discovery of an applicant’s misrepresentations to the court and interested parties. Such a result would be antithetical to the policy of requiring personal representatives to hold specific qualifications and to be held to the highest standards of honesty and truthfulness. Simply, Section 733.212(3) does not provide the trial court with discretion to allow a legally unqualified person the privilege to serve as personal representative. See In re Estate of Greenberg, 390 So.2d at 40; In re Estate of Montanez, 687 So.2d 943 (Fla. 3d DCA 1997).

Accordingly, we reverse the order below with directions that Pass is to be removed as co-personal representative of the estate. Pass is not entitled to the statutory personal representative fee, but shall receive quantum meruit compensation for his services to the estate.

Reversed and remanded with directions.


text:
    Marie Chantal MERLE, Appellant, v. Joseph MERLE, Appellee.
    Nos. 3D03-1912, 3D03-2883.
    District Court of Appeal of Florida, Third District.
    Feb. 11, 2004.
    Rehearing Denied March 24, 2004.
    Scott Alan Orth, for appellant.
    Brian D. Smith, Miami Beach, for appel-lee.
    Before SCHWARTZ, C.J., and COPE and WELLS, JJ.
   PER CURIAM.

Affirmed. See Robles v. Robles, 860 So.2d 1014 (Fla. 3d DCA 2003).


author: FLETCHER, Judge.

text:
    STATE of Florida, Petitioner, v. NARVAL HARDWARE and Juan Ferreiro, Respondents.
    Nos. 3D03-2971, 3D03-2972.
    District Court of Appeal of Florida, Third District.
    Feb. 11, 2004.
    Rehearing Denied March 24, 2004.
    Charles J. Crist, Jr., Attorney General and Linda S. Katz, Assistant Attorney General, for petitioner.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for respondents.
    Before GERSTEN, FLETCHER, and SHEPHERD, JJ.
   FLETCHER, Judge.

The state seeks certiorari review of two trial court orders setting a Frye evi-dentiary hearing to assist the trial court in determining the admissibility into evidence of polygraph (“lie detector”) test results. We quash the two trial court orders.

In Davis v. State, 520 So.2d 572, 573-74 (Fla.1988) the supreme court stated:

“The courts of this state have repeatedly held that the factors contributing to the results of a polygraph test — the skill of the operator, the emotional state of the person tested, the fallibility of the machine, and the lack of a specific quanti-tive relationship between physiological and emotional states — are such that the polygraph cannot be recognized as a sufficiently reliable or valid instrument to warrant its use in judicial proceedings unless both sides agree to its use.”

The Fourth District Court of Appeal was presented in State v. Santiago, 679 So.2d 861 (Fla. 4th DCA 1996) with a trial court ruling that polygraph results favorable to the defendant would be admitted into evidence at trial. The Fourth District Court stated, at 862:

“We grant the state’s petition for certio-rari because our supreme court has held that polygraph tests are inadmissible as a matter of law.”

Although the Fourth District Court certified the question, the defendant did not attempt to carry the case any further.

Similarly to the Fourth District Court, we grant the state’s petition for certiorari and quash the orders entered below. We also certify the following question:

ARE THE RESULTS OF POLYGRAPH TESTS INADMISSIBLE IN EVIDENCE AS A MATTER OF LAW OR ARE POLYGRAPH TESTS SUBJECT TO THE FRYE TEST?

      . Frye v. United States, 293 F. 1013 (D.C.Cir. 1923).

      . The question certified was: “Are the results of polygraph tests inadmissible in evidence as a matter of law?”


text:
    Jose CABALLERO, Appellant, v. Carmen CABALLERO, Appellee.
    No. 3D02-3290.
    District Court of Appeal of Florida, Third District.
    Feb. 18, 2004.
    Rehearing Denied March 26, 2004.
    Mary Raymond, Miami, for appellant.
    Carmen Caballero, in proper person.
    Before SCHWARTZ, C.J., and GODERICH and GREEN, JJ.
   PER CURIAM.

Affirmed. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Broadfoot v. Broadfoot, 791 So.2d 584 (Fla. 3d DCA 2001)(absence of statutory findings does not require reversal when basis for dissolution award is reasonably clear and supported by record). See also Pollock v. Pollock, 722 So.2d 283 (Fla. 5th DCA 1998)(permanent alimony for six year marriage justified by record).


text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. Michael O’SHIELDS, Appellee.
    No. 3D03-1322.
    District Court of Appeal of Florida, Third District.
    Feb. 18, 2004.
    Conroy, Simberg, Ganon, Krevans & Abel and Hinda Klein, Hollywood, for appellant.
    Benson, McGrath, Douglas, Phillips & Ross and Donald H. Benson, Fort Lauder-dale, for appellee.
    Before SCHWARTZ, C.J., and LEVY and SHEVIN, JJ.
   PER CURIAM.

The denial of defendant/appellant’s Motion for Attorneys’ Fees and Costs is affirmed without prejudice, and the said Motion may be renewed after the trial court determines whether the plaintiff/appellee is entitled to attorney’s fees and, if the appellee is entitled to attorney’s fees, the amount of those fees. It should be noted that, through this Opinion, this Court declines to make a finding as to whether the plaintiff/appellee is entitled to attorney’s fees.

Affirmed.


author:
PER CURIAM.
      COPE, J.

text:
    Allen E. FLOYD, a/k/a Therron Floyd, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1847.
    District Court of Appeal of Florida, Third District.
    Feb. 18, 2004.
    Rehearing Denied March 24, 2004.
    Allen E. Floyd a/k/a Therron Floyd, in proper person.
    Charles J. Crist, Jr., Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee.
    Before COPE, GODERICH, and FLETCHER, JJ.
   PER CURIAM.

Affirmed. See Melvin v. State, 645 So.2d 448 (Fla.1994).

GODERICH and FLETCHER, JJ., concur.

COPE, J.

(concurring in part and dissenting in part).

Although it does not make a practical difference, defendant-appellant Floyd is correct in saying that his sentence on count three, aggravated assault, exceeds the legal maximum. Aggravated assault is a third degree felony, see § 784.021(l)(a), (2), Fla. Stat. (1997). The fifteen-year sentence imposed on this count pursuant to the plea bargain exceeds the legal maximum and should be reduced to the five-year legal maximum. See Williams v. State, 500 So.2d 501, 503 (Fla.1986), receded from in part on other grounds, Quarterman v. State, 527 So.2d 1380, 1382 (Fla.1988). However, this error has no practical effect on the defendant’s sentence, as his bargained sentence of fifteen years on count one is a legal sentence and is controlling on the issue of the defendant’s release date.

I concur in denying relief to the defendant on his remaining claims.


author: HAZOURI, J.

text:
    Damon LEE, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4065, 4D02-4277.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2004.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Damon Lee appeals from his convictions in circuit court case numbers 02-3550 and 99-21195, which were consolidated on appeal. Lee was charged by information with one count of possession of cocaine in case number 02-3550 and as a result of these charges he was also charged with a violation of probation in case number 99-21195. Lee filed a motion to suppress in both cases. Following the denial of his motions to suppress, Lee pled nolo conten-dere in each case reserving his right to appeal the denial of his motions to suppress which are dispositive of the charges. We reverse.

At the hearing on the motions to suppress, the only witness who testified was Broward County Sheriffs Detective Ald-waldo Tianga. Tianga testified that on March 1, 2002, at approximately 9:00 p.m., he was on duty and responded to a dispatch based upon an anonymous tip of the sale of narcotics at the 5600 block of S.W. 27th Street in Broward County, Florida. In the past Tianga had received several complaints about that particular street corner concerning illegal drug activity and in fact had made fifteen to twenty drug arrests at that corner. The anonymous caller said that there was a “black male or several black males ... loitering on the street corner, selling narcotics.” Tianga did not remember the call conveying any other information such as clothing, height of suspects, etc. He responded to the corner in “maybe a minute.” The cruiser in which he responded was unmarked, and also occupied by Detective Sweeny. A marked cruiser driven by Deputy Anton responded just ahead of him.

Upon his arrival, Tianga saw approximately five black males loitering at the corner, but had no idea whether these were the same males which were the subject of the anonymous tip. When the males loitering on the street corner observed the marked vehicle approaching, they immediately “dispersed,” all in different directions.

There was an alley between two nearby duplexes. Tianga observed Lee go behind one of the duplexes. The duplex blocked the marked police vehicle’s view of Lee. Tianga drove to the other end of the alley and Lee walked directly toward him. Lee was walking quickly. Detectives Tianga and Sweeny both exited their vehicle wearing shirts that indicated they were police officers. While observing Lee walk toward them, Tianga saw Lee’s hand either go into his right pocket or it was already there as Lee approached. Tianga did not observe Lee flagging down cars or engaging in any drug transactions before departing the area. As Lee was walking straight towards him with his hand in his pocket, Tianga requested that Lee remove his hand from his pocket; this request, according to Tianga, was made for his safety. At that point, Lee reached the sidewalk, took his hand out of his pocket and dropped a small item to the ground. WTien Tianga called out to Sweeny that Lee had dropped something, Lee then fled on foot, but Sweeny apprehended him. The officers picked up the dropped object, which proved to be crack cocaine.

In denying the motions to suppress, the trial court found that under the totality of the circumstances Tianga had a reasonable suspicion that Lee was involved in criminal activity and, therefore, Tianga was legally justified in directing Lee to take his hand out of his pocket. Further, when Lee removed his hand from his pocket, the contraband fell to the ground and Tianga was justified in seizing the contraband. In arriving at this conclusion the trial court relied upon Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), McGee v. State, 818 So.2d 558 (Fla. 2d DCA 2002), and F.E.A. v. State, 804 So.2d 528 (Fla. 1st DCA 2002).

We are required to accept the trial court’s determination of disputed issues of fact in a motion to suppress, as the trial court is vested with the authority to determine the credibility of the witnesses and the weight of the evidence. Although we are required to accept the trial court’s determination of the historical facts leading to the search, a defendant is entitled to a de novo review of whether the application of the law to the historical facts establishes an adequate basis for the trial court’s finding of reasonable suspicion or probable cause. See Curtis v. State, 748 So.2d 370 (Fla. 4th DCA 2000).

The threshold question is whether the initial encounter between Lee and Tianga was a consensual encounter or constituted an investigatory stop for which a reasonable suspicion of criminal activity is required. The state argues that the mere request by Tianga that Lee take his hand out of his pocket was insufficient to constitute a stop. We disagree. See Harrison v. State, 627 So.2d 583 (Fla. 5th DCA 1993).

In Harrison, the trial court denied a motion to suppress where an officer who had a suspect (Harrison) under surveillance, approached him for identification purposes. The officer, after asking if the suspect was “T” and getting an affirmative response, told Harrison to take his hand out of his pocket. When Harrison removed his hand from his pocket, a substance containing cocaine fell to the ground. Id. at 584. The Fifth District, in finding that the request by the officer that Harrison remove his hand from his pocket was an illegal seizure, stated:

Whether the trial court correctly denied the motion to suppress depends upon whether the initial consensual encounter between the officer and Harrison evolved into a seizure before Harrison dropped the cocaine. We must hold that a seizure did occur under Hollinger v. State, 620 So.2d 1242 (Fla.1993) and State v. Anderson, 591 So.2d 611 (Fla.1992). In Anderson the supreme court held that “[an] abandonment which is the product of an illegal stop is involuntary, and the abandoned property must be suppressed.” Anderson at 613. In Hollinger, the defendant dropped cocaine as a group of officers in black masks and SWAT-team-type regalia approached him and his companions in a parking lot during a drug sweep and announced that they were from the “Orange County Sheriffs Office.” The trial court suppressed the cocaine ruling that the dropping of the cocaine under those circumstances was involuntary. The supreme court found the trial court properly suppressed the cocaine since the trial court’s factual finding that “a reasonable person under [these] circumstances would feel that he was not to move” was sufficiently supported by the evidence. Id. at 1243.
Other Florida district courts have consistently held that orders or even requests to remove a hand from a pocket causes a consensual encounter to become a seizure.

Harrison, 627 So.2d at 584. As in Harrison, the request by Tianga for Lee to remove his hand from his pocket amounted to a stop.

The next issue which must be addressed is whether there were sufficient facts to support a reasonable suspicion on the part of Tianga of criminal activity which would make the investigatory stop lawful.

The initial stop of Lee was based upon “a call coming over the radio of an anonymous narcotics complaint at the 5600 block of SW 27th Street,” an area known for illegal drug activity. Specifically, the call was that “there were several black males loitering on the street corner, selling narcotics.” However, there was no description of these males, i.e., their height, weight, type of clothing, etc. As Tianga in his unmarked vehicle and the other marked police vehicle arrived, the males on the street corner “dispersed” in different directions. Nevertheless, Tianga did not know that these were the same males about whom the anonymous informant was calling. He simply observed Lee quickly walking away from the area between the buildings and toward him. Tianga never saw Lee engage in any illegal activity.

While an anonymous tip can provide the basis for an investigatory stop, the tip must contain sufficient indicia of reliability to furnish the police with reasonable suspicion that defendant is engaged in criminal activity; such reliability is judged by (a) its specificity and (b) independent police corroboration of significant aspects of the informant’s predictions. See Davis v. State, 606 So.2d 460 (Fla. 1st DCA 1992) (stop not justified based upon extremely vague anonymous tip, which was received during the evening hours, of possible drug activity on the beach, officer’s observations of boats in the water, and defendant’s driving his automobile off the beach upon noticing officer’s patrol car); see also Solino v. State, 763 So.2d 1249 (Fla. 4th DCA 2000) (anonymous tip that bottle was thrown from the defendant’s car was insufficient to justify stop); Butts v. State, 644 So.2d 605 (Fla. 1st DCA 1994) (insufficient anonymous tip consisting simply of fact that black male with grey beard, wearing black cap, grey pants and blue jacket was riding bicycle, had gun in pocket, and was possibly selling drugs).

In the instant case, the anonymous tip failed to contain the requisite specificity. Equally lacking was any independent police corroboration of significant aspects of the informant’s complaint that Lee was engaged in any suspicious criminal activity. Therefore, the anonymous tip was insufficient to establish reasonable suspicion.

The trial court’s reliance on Wardlow, McGee, and F.E.A. to support its conclusion that there was sufficient suspicion of criminal activity to warrant the investigatory stop is misplaced. We find Wardlow, McGee, and F.E.A. distinguishable from the facts of the instant case.

In Wardlow, the defendant fled upon seeing a caravan of police vehicles converge on an area of Chicago known for heavy narcotics trafficking. When the police officers caught up with Wardlow on the street, they stopped him and conducted a protective patdown search for weapons because, in their experience, there were usually weapons' in the vicinity of narcotics transactions. Discovering a hand gun, the officers arrested Wardlow. The Illinois trial court denied his motion to suppress, finding the gun was recovered during a lawful stop and frisk. Wardlow was convicted of unlawful use of a weapon by a felon. In reversing the trial court, the state appellate court found that the police officer did not have reasonable suspicion to make the stop. The Illinois Supreme Court affirmed, determining that the sudden flight in a high crime area does not create a reasonable suspicion justifying a Terry stop because flight may simply be an exercise of the right to go one’s way. 528 U.S. at 121-23, 120 S.Ct. 673.

The United States Supreme Court reversed the Illinois Supreme Court, noting that the officer’s actions did not violate the Fourth Amendment. In reversing, the Supreme Court held that the brief encounter between a citizen and a police officer on a public street, is governed by Terry, under which an officer who has a reasonable, articulable suspicion that criminal activity is afoot may conduct a brief investigatory stop. Id. at 123, 120 S.Ct. 673. While reasonable suspicion is a less demanding standard than probable cause, there must be at least a minimal level of objective justification for the stop. Id. An individual’s presence in a high crime area, standing alone, is not enough to support a reasonable, particularized suspicion of criminal activity, but a location’s characteristics are relevant in determining whether the circumstances are sufficiently suspicious to warrant further investigation. Id. at 124. The Court went on to state that the unprovoked flight by Wardlow upon the appearance of the police officer combined with it being in a high crime area was sufficient reasonable suspicion to warrant a Terry stop. Id. at 124-25, 120 S.Ct. 673.

Justice Rehnquist writing for the majority stated:

In this case, moreover, it is not merely respondent’s presence in an area of heavy narcotics trafficking that aroused the officers’ suspicion, but his unprovoked flight upon noticing the police. Our cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Headlong flight — wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.

Id. at 124,120 S.Ct. 673 (citations omitted).

The factor missing in the instant case is that there is no evidence of flight and certainly no evidence of “headlong flight.” Tianga testified that upon his arrival in the area in which Lee was located, that the group “dispersed.” As Lee was headed in the direction towards where Tianga had positioned his vehicle, the most that could be said was that Lee was walking quickly. Prior to Lee dispersing, Tian-ga observed no suspicious activity. He simply observed a group of “black men” standing on the corner in the 5600 block of S.W. 27th Street. There was no evidence presented that Lee acted “nervous” or engaged in “evasive behavior” prior to Tian-ga’s request that Lee remove his hand from his pocket. Under the totality of the circumstances there are insufficient facts to support a reasonable suspicion that Lee was engaged in criminal activity. Without a reasonable suspicion the investigatory stop was unlawful and, therefore, the contraband obtained when Tianga requested Lee to remove his hand from his pocket was “fruit of the poisonous tree” and should have been suppressed. See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The trial court’s reliance on McGee and F.E.A. is also misplaced. Both cases are distinguishable on their facts. In McGee, McGee was convicted of possession of cocaine and obstructing or opposing an officer without violence. The Second District, in affirming the trial court’s denial of McGee’s motion to suppress, found that there was reasonable suspicion that McGee was engaged in criminal activity which warranted the initial stop. See 818 So.2d at 559. At the hearing on the motion to suppress, the arresting officer testified that he observed McGee in an alley by a vacant lot at 11:30 p.m. McGee appeared to be just standing in the alley. Id. at 558. The police officer, who was dressed in a police uniform, stopped his vehicle to ask McGee his name and determine why he was in the alley. Id. As McGee started to walk toward the police officer, he suddenly changed directions and started running away. Id. The officer chased McGee for a few blocks and was able to stop McGee, at which time McGee threw a piece of paper to the ground which contained cocaine. Id. The police officer testified that he was familiar with the area where McGee had been standing and that he had personally made more than 100 narcotics arrests in that area during the past year. Id. at 558-59. The Second District, relying upon Wardlow, noted that the Supreme Court held that unprovoked flight upon noticing police was a pertinent factor in determining reasonable suspicion. Id. at 559.

In F.E.A., an Escambia County Sheriffs Deputy was patrolling a closed ballpark. County authorities had requested a deputy’s patrol because there had been numerous instances of criminal mischief and burglaries at the ballpark. See 804 So.2d at 528-29. At approximately 9:30 p.m., as the deputy began to patrol the ballpark, he observed a car with its lights off, parked at the closed ballpark, and saw a male run from the ballpark’s field, jump in the car, and speed away. Id. at 529. The deputy followed and stopped the car at a convenience store a few blocks away for further investigation. Id. When the deputy approached, he smelled a strong odor of marijuana coming from the car, so he called a K-9 unit to conduct a search of the car. Id. During the search, cannabis, paraphernalia, and alcoholic beverages were found. Id. The First District, in affirming the trial court’s denial of the motion to suppress, held that flight in a high crime area upon approach of a deputy justified the investigatory stop.

In the instant case, although Lee was in an area known for numerous arrests for the sale of narcotics, he did not flee upon the arrival of law enforcement. In the words of Tianga, he “dispersed.” Lee “walked quickly.” Under the totality of the circumstances there was no reasonable suspicion to conduct an investigatory stop. Therefore, requesting Lee to remove his hand from his pocket was unlawful and the evidence of crack cocaine is suppressed. The convictions for possession of cocaine and violation of probation are reversed.

REVERSED.

SHAHOOD and MAY, JJ., concur.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


text:
    Ricky Eugene PATTERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2020.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2004.
    Rehearing Denied April 6, 2004.
    Ricky Eugene Patterson, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

Ricky Eugene Patterson has appealed a trial court order which denied his motion for reconsideration of an earlier trial court order dismissing his petition for writ of habeas corpus, and a separately filed motion for relief from judgment filed pursuant to Florida Rule of Civil Procedure 1.540(b). We summarily affirm that portion of the order which dismissed habeas corpus, since Patterson actually sought belated appeal in post-conviction proceedings. This must be sought by proper petition filed in this court under Florida Rule of Appellate Procedure 9.141(c). Indeed, our records confirm that Patterson actually has filed such a petition in this court and that this court earlier granted him belated appeal of an order denying his motion for post-conviction relief and petition for writ of error coram nobis.

As for that portion of the order on appeal which denied his motion for reconsideration of an earlier order denying his motion for relief from judgment, we dismiss for lack of subject matter jurisdiction in this court. Patterson’s motion for relief of judgment was not authorized under the Florida Rules of Criminal Procedure in his post-conviction proceedings, and the order denying it was a legal nullity. It was not filed in time for the trial court to have considered it a motion for rehearing under Florida Rule of Criminal Procedure 3.850(g). Reconsideration of the order denying relief from judgment is not an authorized motion either. The order of denial is a legal nullity.

AFFIRMED IN PART, DISMISSED IN PART.

STONE, POLEN and TAYLOR, JJ., concur.