author: GRIFFIN, J.

text:
    Katherine MACON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2587.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2003.

      James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Katherine Macon [“Macon”] appeals her conviction for resisting an officer without violence. Because the lower court erred in denying a requested jury instruction, we reverse.

During the charge conference, Macon requested an instruction on resisting an officer without violence as a lesser included offense. She also asked for an instruction that a defendant is allowed to resist an unlawful arrest without violence. The court refused to give the instruction, explaining, “I don’t think this case is so complicated or unusual that there should be a special instruction.” The jury was ultimately instructed that:

As to the lesser offense, before you can find the defendant guilty of resisting an officer without violence, the state must prove the following three elements beyond a reasonable doubt.
One, Katherine Macon resisted or obstructed Officer Dawn Harris; two, at the time, Officer Dawn Harris was engaged in the lawful execution of a legal duty; three, at the time, Dawn Harris was an officer.
The Court now instructs you that every Daytona Beach police officer is an officer within the meaning of this law. The Court further instructs you that making an arrest constitutes a lawful execution of a legal duty.

Macon was found guilty by the jury of the lesser included offense of resisting an officer without violence. She was sentenced to one year of probation, with the special condition that she complete anger management and that she undergo a mental health evaluation and treatment if deemed necessary.

Macon contends that, because there was evidence that her conduct did not constitute disorderly conduct or a breach of the peace, the jury could have concluded that her arrest was illegal. She contends that the jury should have been instructed that she had the right to resist an illegal arrest without violence.

Where a defendant has been charged with resisting arrest without violence, and has raised the issue of the legality of his or her arrest, a defendant is entitled to an instruction that places the issue before the jury. State v. Anderson, 639 So.2d 609 (Fla.1994); Bratcher v. State, 727 So.2d 1114 (Fla. 5th DCA 1999). In Anderson, the court considered the propriety of the standard instruction on resisting an officer without violence, which includes the instruction that at the time of the offense the officer had to be “engaged in the lawful execution of a legal duty.” In cases involving an arrest, the standard instruction contemplated a further instruction that “an arrest constitutes the lawful execution of a legal duty.” The Anderson court agreed that the standard instruction was sufficient in most cases, but stated that “in those cases where the defendant maintains that the arrest was unlawful and requests that the jury be instructed on that defense, an instruction should be given to insure that the jury understands that it must decide the issue.” Id. at 610.

In Campbell v. State, 812 So.2d 540 (Fla. 4th DCA 2002), the defendant requested an instruction that: “a person may lawfully resist an illegal arrest without using any force or violence.” On appeal, the Fourth District found no abuse of discretion in the failure to give the particular instruction requested, but held that “because appellant maintained that the arrest was unlawful, he was entitled to a modified standard instruction clarifying that the legality of his arrest was an issue for the jury to decide.” Id.

Similarly, in Bratcher, the defendant asked the court to instruct the jury as follows in a prosecution for resisting an officer without violence:

The Defendant has the right to resist without violence an officer who conducts an unlawful arrest, detention and or criminal investigation.
The Court further instructs you if the arrest of Nathaniel Bratcher is unlawful, the Defendant has the right to resist, obstruct or oppose without violence such unlawful arrest.

727 So.2d at 1117 (citation omitted.) In holding that it was error to refuse an instruction which raised the issue of the illegality of the arrest, this court stated:

The legality of the arrest is an element of the offense of resisting arrest without violence. State v. Espinosa, 686 So.2d 1345 (Fla.1996). In a jury trial, this is an issue for the jury to decide. In this case, unlike Anderson, the jury was not instructed as to the defendant’s claim concerning the alleged unlawfulness of the detention and arrest so the jury could not have understood that this was an issue that it must decide. The proposed instruction may have been repetitious and portions may have been unnecessary but the gist of the instruction should have been given: the jury should have been instructed on the defense claim of an unlawful detention and arrest.

Id.

In this case, as in Campbell and Bratcher, the defendant was entitled to an instruction which placed the issue of the legality of her arrest before the jury. The instruction was supported by some evidence, since both Macon and her boyfriend testified that she had done nothing illegal before her arrest. Because the standard instruction did not adequately cover her theory of defense, which was that her arrest was illegal, we reverse and remand for a new trial.

REVERSED and REMANDED.

PLEUS and TORPY, JJ., concur.

      . The First Amendment limits application of Florida's disorderly conduct statute (which includes a breach of the peace) to “fighting words" or "words like shouts of ‘fire’ in a crowded theater.” See State v. Saunders, 339 So.2d 641 (Fla.1976); Wiltzer v. State, 756 So.2d 1063 (Fla. 4th DCA 2000); § 877.03, Fla. Stat. (2001). Words alone generally will not support a conviction for disorderly conduct. See W.L, v. State, 769 So.2d 1132 (Fla. 3d DCA 2000)(First Amendment protected profanities and offensive speech that arrestee yelled at police officers when they asked for identification and, therefore, prohibited arrest and delinquency adjudication for disorderly conduct; the arrestee was doing nothing unlawful, never physically interfered with the police, and was punished for pure speech); L.A.T. v. State, 650 So.2d 214, 215 (Fla. 3d DCA 1995)(holding that defendant’s shouting in a Publix supermarket "Is everybody watching this, police brutality ... Rodney King style” and screaming and cursing at the top of his lungs was insufficient to support a conviction for disorderly conduct).


source: Caselaw Access Project

license: Public Domain

text:
    Wayne M. FIELDHOUSE, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2302.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2003.
    James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Appellant, Wayne M. Fieldhouse [“Fieldhouse”], appeals his conviction for capital sexual battery upon a child less than twelve years of age by causing his finger to penetrate the victim’s vagina. He complains of the trial court’s denial of his motion for judgment of acquittal and the giving of a jury instruction defining “penetration.” We find no error and affirm. The record shows the State presented competent evidence to establish the elements of the offense charged, including testimony that Fieldhouse’s finger penetrated the child victim’s vágina. As to the jury instruction, although it may have been largely irrelevant under the facts of this case, there was no reasonable possibility that the giving of the instruction contributed to the conviction. Thus, any error was harmless. State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

AFFIRMED.

ORFINGER and MONACO, JJ., concur.


author: PETERSON, J.

text:
    Maria Elena BURNAM, Petitioner, v. STATE of Florida, Respondent.
    No. 5D03-2654.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2003.
    Robert Wesley, Public Defender, and W. Patrick Westerfield, Assistant Public Defender, Orlando, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Respondent.
   PETERSON, J.

Maria Elena Burnam seeks a writ of habeas corpus. Burnam was arrested on July 17, 2003 and subsequently charged by information with trafficking in cocaine. She appeared for a pretrial probable cause hearing on July 18, 2003, in accordance with the requirements of Florida Rule of Criminal Procedure 3.133(a)(1). The presiding judge found no probable cause, but allowed the State an additional 48 hours to submit an affidavit in suppprt of probable cause and established a $10,000 bond. On July 20, 2003, a second probable cause hearing was held by a different judge who found probable cause and established a $50,000 bond without any additional information provided by the State.

Rule 3.133(a)(1) requires that a defendant in custody be afforded a probable cause determination within 48 hours of arrest. The 48-hour period may be extended for not more than two 24-hour periods after a showing of extraordinary circumstances. Rule 3.133(a)(4) provides that if probable cause is not found or the specified times are not complied with, the defendant shall be released from custody unless an information or indictment has been filed in which event the defendant shall be released on her own recognizance subject to certain conditions.

We interpret rule 3.133(a)(1) to require the judge conducting the initial pretrial probable cause hearing to select one of three actions: (1) find probable cause, (2) find no probable cause, or (3) continue the hearing for one or two 24-hour periods to allow the state to supplement the facts in support of a finding of probable cause. At the second hearing the State expressly informed the court that it had no further information to offer.

Because the judge at the first hearing found no probable cause, we grant the petition, issue the writ and remand with instructions to the trial court to release the defendant upon her own recognizance since an information has been filed against her.

PETITION GRANTED; REMANDED.

SHARP, W., and GRIFFIN, JJ., concur.


author: PER CURIAM.

text:
    Brandon GOLDEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-382.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 2003.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for Appellee.
   PER CURIAM.

Upon consideration of the parties’ briefs and the record on appeal, we reverse and remand for the trial court to enter an order that comports to its oral pronouncements regarding assessed sentencing fees. See Johnson v. State, 664 So.2d 1053 (Fla. 2d DCA 1995).

REVERSED and REMANDED.

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


text:
    Lavons NEWTON, Appellant, v. CITY OF STUART, et al., Appellee.
    No. 4D02-680.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 2003.
    Lavoris Newton, Stuart, pro se.
    Leonard Rutland, Jr., Stuart, for appel-lee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

STONE, WARNER and HAZOURI, JJ., concur.


text:
    Juan CALA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-923.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 2003.
    Kenneth P. Speiller, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Barbara Zappi, Assistant Attorney General, (FtLauderdale), for appellee.
    Before COPE, SHEVIN, and WELLS, JJ.
   PER CURIAM.

Juan Cala challenges his sentence as a violent career criminal arguing that the non-violent burglaries on which his sentence was based are not qualifying offenses as “described” in section 776.08 of the Florida Statutes. See § 775.084(l)(d), Fla. Stat. (2003) (defining a violent career criminal as a defendant who has previously been convicted as an adult three or more times for an offense that is a “forcible felony, as described in s. 776.08”). According to Cala, section 776.08 enumerates those crimes that may qualify as predicate forcible felonies if and only if they involve the use or threat of physical force or violence. We disagree.

Section 776.08 defines the term forcible felony to mean those crimes expressly enumerated, irrespective of the use or threat of physical force or violence, as well as those crimes not enumerated which involve the use or threat of physical force or violence:

“Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.

§ 776.08, Fla. Stat. (2003) (emphasis added).

As we explained in Rodriguez v. State, 837 So.2d 1177, 1178-79 (Fla. 3d DCA 2003), the final clause of section 776.08 looks to the statutory elements of crimes not enumerated, not to the elements of those crimes expressly listed. Thus, a pri- or conviction for burglary, even for burglary of an unoccupied premises, may qualify as a predicate conviction under section 775.084. See, e.g., Woody v. State, 847 So.2d 566 (Fla. 3d DCA 2003) (holding that “non-violent burglaries ... counted as qualifying offenses”); Delsol v. State, 837 So.2d 428 (Fla. 3d DCA 2002) (holding that non-violent burglaries could be considered forcible felonies under section 775.084 as qualifying offenses); see also Spikes v. State, 851 So.2d 252 (Fla. 3d DCA 2003) (confirming that conviction for burglary of an unoccupied conveyance qualifies a defendant as a violent career criminal under section 775.084(l)(c)).

Affirmed.


author: MAY, J.

text:
    John GRIVEAS, Appellant, v. AMOCO OIL COMPANY, a Maryland corporation n/k/a BP Products North America, Inc., and Jimmy Moran, an individual, Appellees.
    No. 4D02-4990.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 2003.
    Allan S. Reiss and Suzan Jon Jacobs of Levine & Partners, P.A., Miami, for appellant.
    John R. Hargrove and W. Kent Brown of Heinrich Gordon Hargrove Weihe & James, P.A., Ft. Lauderdale, for appellees.
   MAY, J.

John Griveas [tenant] filed a complaint against Amoco Oil Company to determine his rights under a lease and agreement concerning a gasoline station. Amoco counterclaimed for injunctive and other relief. The trial court granted Amoeo’s claim for temporary injunctive relief. The tenant appeals from that order. We reverse in part and remand the case to the trial court for revision of the order as set forth below.

In September 1998, Amoco Oil, BP Amoco’s predecessor, entered into a four-year Commission Marketer Agreement [Agreement] and a corresponding four-year Commissioner Marketer Lease [Lease] with Carmen Aleman. The tenant is Aleman’s assignee.

The Agreement provided Aleman with the right to use and dispense Amoco fuel from the Amoco station for four years. It further provided:

This Agreement shall terminate upon the termination, nonrenewal or expiration, for any reason, of-the Lease. Marketer acknowledges and understands that upon the termination, nonrenewal, or expiration of this Agreement and/or the Lease, Amoco may discontinue operations at the Facility or may continue in possession of the Facility and operate it with its own employees, or establish operations by a contractor, dealer and/or jobber and may, without limitation, transfer, operate or use the Facility in any manner for any purpose.

The Lease encompassed the non-gasoline portion of the station, i.e., convenience store and car wash, for which the tenant paid rent to Amoco. It contained expiration language similar to the Agreement.

On July 11, 2002, the tenant sued Amoco in Broward County for damages and in-junctive relief. The complaint alleged fraud, negligent misrepresentation, and deceptive trade practices. According to the tenant, he met with Amoco’s representatives before the assignment, who gave him certain assurances. First, he would receive a full four-year Agreement and Lease (even though only two years remained on the assigned Agreement and Lease). Second, Amoco would automatically renew the Agreement and Lease for two consecutive four-year terms, provided he was a good operator and the business was profitable. The tenant alleged that he would not have undertaken the substantial investment in the station to increase gas sales and revenues without those representations.

In October, 2002, Amoco filed a counterclaim, alleging breach of contract, delivery of premises, trademark infringement, unfair competition, trademark counterfeiting, and other claims. The counterclaim alleged that the Agreement expired on September 7, 2002. Amoco sought to remove the tenant and prevent him from continuing to sell non-Amoco brand fuel while using Amoco trademarks. It also sought damages resulting from the tenant’s alleged illegal occupation and activities. Amoco then moved to enjoin the tenant’s continuing trespass, trademark infringement, and related illegal acts.

On December 6, 2002, the trial court granted Amoco’s motion for partial summary judgment on the tenant’s fraud and negligent misrepresentation claims. On December 18, 2002, following an evidentia-ry hearing, the trial court granted Amoco’s motion for temporary injunctive relief and entered the order which is the subject of this appeal. It provides the following relief:

1. The court immediately enjoins plaintiff, JOHN GRIVEAS, his officers, agents, servants, employees and attorneys, as well as any other person(s) or entity(ies) acting in concert with plaintiff, from using the Amoco Station and from otherwise remaining on the Amoco Station premises.
2. Plaintiff, JOHN GRIVEAS, his officers, agents, servants, employees and attorneys, as well as any other persons(s) or entity(ies) acting in concert with plaintiff, shall immediately return the Amoco Station and all keys thereto to BP AMOCO, including all fixtures and equipment belonging to BP AMOCO.
8, The court immediately enjoins plaintiff, JOHN GRIVEAS, his officers, agents, servants, employees and attorneys, as well as any other persons(s) or entityfies) acting in concert with plaintiff, from selling gasoline through the pumps at the Amoco Station.
4. The court immediately enjoins plaintiff, JOHN GRIVEAS, his officers, agents, servants, employees and attorneys, as well as any other persons(s) or entity(ies) acting in concert with plaintiff, from further defacing the Amoco Station.
5. BP AMOCO’s bond is set at $300,000.
6. The injunction shall be effective upon the filing of the bond.

(Emphasis supplied).

The tenant argues that the Broward County circuit court erred in entering the order granting injunctive relief because it lacked in rem jurisdiction over the real property, which is located in Palm Beach County. To the extent the language in the order effectively “evicts” the tenant, we agree.

Our supreme court addressed a similar jurisdictional issue concerning the forfeiture of real property in Ruth v. Department of Legal Affairs, 684 So.2d 181 (Fla.1996). In Ruth, the State sought to obtain forfeiture of real property located in another jurisdiction as a consequence for a crime, which had been committed within the territorial jurisdiction of the circuit court. The defendant argued that the circuit court did not have in rem jurisdiction over the real property located in a county outside its territorial jurisdiction.

The supreme court held that “although a trial court with in personam jurisdiction may determine who as between the State and the Defendant is entitled to the property, the court must transfer the case to a court with in rem jurisdiction if the declaration is to be given effect.” Id. at 186. Thus, the court drew a fine line between determining rights to real property as between two litigants and effectuating title to real property.

In this case, the trial court has the authority to determine the litigant’s rights as established by the terms of the Agreement and the Lease. It does not, however, have jurisdiction to essentially “evict” the tenant. See Sheehan v. Marshall, 458 So.2d 481 (Fla. 2d DCA 1984). Only the circuit court in the county where the real property is located has in rem jurisdiction. Id. See also VL Orlando Bldg.Corp. v. AGD Hospitality Design & Purchasing, Inc., 762 So.2d 956 (Fla. 4th DCA 2000); Goedmakers v. Goedmakers, 520 So.2d 575 (Fla.1988); and Publix Super Mkts. Inc. v. Cheesbro Roofing, Inc., 502 So.2d 484 (Fla. 5th DCA 1987).

Therefore, we reverse the order in part, and remand the case to the trial court with directions to delete those portions of the above-quoted order which appear in italics. Amoco may then proceed to effectuate the order in Palm Beach County, where the real property is located and Amoco has already filed an eviction action.

REVERSED AND REMANDED.

WARNER and STEVENSON, JJ., concur.


text:
    Nicholas CRANZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3105.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 2003.

      Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Consuelo Maingot (Ft. Lauderdale), Assistant Attorney General, and Melissa Vaughan Rubin, Certified-Out-Of-State Practitioner, for appellee.
    Before RAMIREZ and WELLS, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

In this case the defendant’s community control was held to have been violated (1) for being briefly absent from his residence to retrieve a birthday present from his parked car for his son, and (2) for being only a short distance away buying cigarettes. Defendant was otherwise complying with community control and all other special terms and conditions of his probation and the trial judge expressed his belief in the defendant’s explanation for his absences from the home. The greater weight of the evidence did not show that the two acts should have been considered as a willful and substantial violation of the community control. McCray v. State, 754 So.2d 776 (Fla. 3d DCA 2000); Dassau v. State, 731 So.2d 86 (Fla. 3d DCA 1999). Inept or negligent conduct is insufficient to demonstrate willfulness. McCray, supra, at 778.

Accordingly, the revocation of defendant’s community control is reversed.


text:
    Angela Hamilton KEEN, Appellant, v. FLORIDA SHERIFFS’ SELF-INSURANCE FUND, Appellee.
    No. 4D02-3857.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 2003.

      Eric G. Belsky of Johnson, Letter & Belsky, Fort Lauderdale and Eric H. Luckman of Eric H. Luckman, P.A., Boyn-ton Beach, for appellant.
    Ellen C. Pappas and Ronald A. Mowrey of Mowrey & Biggins, P.A., Tallahassee, for appellee.
   PER CURIAM.

We reverse the order dismissing this action seeking a declaration of coverage under an insurance policy. The court made a decision on the merits that there was no coverage under the policy. This was error. “A motion to dismiss a complaint for declaratory judgment is not a motion on the merits. Rather, it is a motion only to determine whether the plaintiff is entitled to a declaration of its rights, not to whether it is entitled to a declaration in its favor.” Laganella v. Boca Grove Golf & Tennis Club, Inc., 690 So.2d 705, 706 (Fla. 4th DCA 1997) (quoting Royal Selections, Inc. v. Fla. Dep’t of Revenue, 687 So.2d 893 (Fla. 4th DCA 1997)).

Appellee relied heavily on Mason v. Florida Sheriffs’ Self-Insurance Fund, 699 So.2d 268 (Fla. 5th DCA 1997), which construed the same policy language under very similar circumstances. However, Mason was not a declaratory judgment case and therefore is not applicable to this procedural matter, although it is relevant authority on the merits.

Reversed and remanded for further proceedings.

WARNER, MAY, JJ., and ARAMONY, SUSAN, Associate Judge, concur.


text:
    T.V., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3586.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 2003.
    Carey Haughwout, Public Defender, and Eunice T. Baros, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the juvenile disposition occasioned by T.V.’s entering a plea on three pending charges. We remand, however, for the trial court to specify the amount of credit for time previously served to which T.V. is entitled on his present commitment.

STONE, POLEN, JJ., and ROSENBERG, ROBERT A., Associate Judge, concur.


text:
    Oscar C. ORTIZ, Appellant, v. DEPARTMENT OF STATE, DIVISION OF LICENSING, Appellee.
    No. 3D02-2470.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 2003.
    Oscar C. Ortiz, in proper person.
    Stephen S. Mathues, Tallahassee, for ap-pellee.
    Before SCHWARTZ, C.J., and COPE and FLETCHER, JJ.
   PER CURIAM.

This is an appeal from the denial of a Class “D” security officer license after an informal hearing. In view of the conceded facts of this case, we conclude that the law was applied correctly and we affirm. See § 493.6101(7), Fla. Stat. (2002).

Affirmed.


text:
    William GOLDBACH, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D03-2764 to 4D03-2766.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 2003.
    William Goldbach, Madison, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Within this consolidated appeal, William Goldbach seeks review of orders that denied post-conviction relief. We accept the state’s position that this case should be remanded for consideration of Goldbach’s claim that he was not given adequate notice of the State’s intent to seek an enhanced sentence. It is so ordered.

FARMER, C.J., SHAHOOD and GROSS, JJ., concur.


text:
    Mario GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-506.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 2003.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before GREEN, FLETCHER, and WELLS, JJ.
   PER CURIAM.

This is an appeal from the partial denial of a motion to correct illegal sentence in lower court case number 99-993. In that case, Gonzalez was convicted of burglary of an unoccupied dwelling (Count I) and grand theft, third degree (Count II). Pursuant to a plea, which involved other cases as well, Gonzalez was sentenced on Count I to thirty years, with a ten year minimum mandatory as a habitual violent offender (“HVO”), and with a fifteen year minimum mandatory as a Prison Releasee Reoffen-der (“PRR”). On Count II, Gonzalez was sentenced to five years as an HVO and to fifteen years minimum mandatory as a PRR. The sentences on Count II were to run consecutive with the sentences on Count I; the PRR sentence on Count II was to run concurrent with a PRR sentence in another case (99-766) for which Gonzalez was being sentenced that same day.

Gonzalez subsequently challenged the propriety of the PRR sentences on both Counts I and II, claiming, as the State concedes, that neither offense was among those enumerated as qualifying offenses in section 775.082(9)(a), Florida Statutes (Supp.1998). Review of the record confirms that the trial court, again as the State concedes, intended to strike the PRR designation and the minimum mandatory sentences imposed on both Count I and Count II, but that as a consequence of the confusion over other cases on which Gonzalez had been sentenced, entered a written order striking the PRR designation and sentence only from Count I.

Since grand theft, third degree, is not a qualifying offense for PRR purposes, and since a “written sentencing order must conform to the trial court’s oral pronouncement of sentence,” the order under review must be reversed and remanded for deletion of the PRR sentence and concomitant minimum mandatory term as to Count II. See Brimage v. State, 745 So.2d 340 (Fla. 3d DCA 1999).

      . This resolution makes it unnecessary to address the remainder of Gonzalez' arguments. We also decline (without prejudice) Gonzalez’ invitation to rule on the legality of the sentences imposed in ten other cases since the propriety of those sentences was not raised below.


author: FLETCHER, Judge.

text:
    Xavier HAYES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-408.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 2003.
    Bennett H. Brummer, Public Defender, and Mark Graham Hanson, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Meredith L. Balo, Assistant Attorney General, for appellee.
    Before FLETCHER and SHEVIN, JJ. and NESBITT, Senior Judge.
   FLETCHER, Judge.

We affirm the trial court’s two orders holding Xavier Hayes in criminal contempt. We do so notwithstanding that the trial court deviated from Rule 3.830, Florida Rules of Criminal Procedure, which rule governs direct criminal contempt proceedings and requires scrupulous compliance with its provisions. See Poitier v. Spears, 750 So.2d 767 (Fla. 3d DCA 2000). The deviation, however, was technical and Hayes was ultimately afforded all the rights incorporated in Rule 3.830. As stated by the First District Court of Appeal in Saunders v. State, 319 So.2d 118 (Fla. 1st DCA 1975): “A step-by-step recitation of each provision of the subject procedural rule is not requisite upon the trial judge. The record of the proceeding when taken in its totality is the scale upon which fundamental rights must be weighed.” Here, the totality scale was evenly balanced by the trial judge so as to provide Hayes with all his 3.830 rights and to assure that the business of the court could proceed notwithstanding Hayes’ disruptions.

Affirmed.

      . Hayes does not contend that his actions were insufficient to justify his being held in direct criminal contempt. With good reason: our review of Hayes’ actions reveals them to be more than sufficient.

      . Rule 3.830 reads:
      "A criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court. The judgment of guilt of contempt shall include a recital of those facts on which the adjudication of guilt is based. Prior to the adjudication of guilt the judge shall inform the defendant of the accusation against the defendant and inquire as to whether the defendant has any cause to show why he or she should not be adjudged guilty of contempt by the court and sentenced therefor. The defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances. The judgment shall be signed by the judge and entered of record. Sentence shall be pronounced in open court."

      . See also B.M. v. State, 523 So.2d 1185 (Fla. 2d DCA 1988), citing and quoting Saunders.


text:
    Priscilla THORNTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1783.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 2003.
    Priscilla Thornton, in proper person.
    Charles J. Crist, Jr., Attorney General, and Barbara A. Zappi, Assistant Attorney General, for appellee.
    Before COPE and LEVY, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Priscilla Thornton appeals an order denying her motion for postconviction relief. We affirm and certify direct conflict.

Defendant-appellant Thornton entered a guilty plea to the charge of trafficking in cocaine in an amount greater than 28 grams but less than 200 grams in violation of subparagraph 893.135(l)(b)l., Florida Statutes (2001) (count one), and importation of cocaine into Florida in violation of paragraph 893.135(5)(a), Florida Statutes (2001) (count two). The crime date was March 17, 2002. The trial court imposed concurrent three-year sentences, with a three-year mandatory minimum sentence on count one.

The .defendant challenges the three-year mandatory minimum sentence imposed on count one as being illegal. The three-year mandatory minimum sentence was added to the criminal code by section 9 of chapter 99-188, Laws of Florida. The defendant asserts that chapter 99-188 violates the single subject rule and is unconstitutional.

This court has previously held that chapter 99-188 does not violate the single subject requirement of the Florida Constitution. State v. Franklin, 836 So.2d 1112, 1113-14 (Fla. 3d DCA 2003) (en banc). As we did in that case, we certify direct conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002).

Affirmed; direct conflict certified.


author: PER CURIAM. GRIFFIN, J.,

text:
    Sharon R. LEICHERING, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D03-113.
    District Court of Appeal of Florida, Fifth District.
    Sept. 26, 2003.
    Sharon R. Leichering, Orlando, pro se.
    John D. Maher, Tallahassee, for Appel-lee.
   PER CURIAM.

Appellant, Sharon R. Leichering, proceeding pro se, appeals a decision of the Unemployment Appeals Commission [“UAC”] affirming a referee’s determination that she had not timely appealed a redetermination of the award of her unemployment benefits.

The City of Orlando had employed appellant prior to her termination. She was awarded unemployment benefits of $275 per week with an effective date of June 23, 2002. Subsequently, however, she was notified that she was not entitled to unemployment benefits because the City had terminated her employment for discharging a weapon on the job. The notice contained the following: “[t]he determination will become final unless you request a hearing within 20 days from the mailing date of this notice explaining the basis of the protest.” The twenty-day period expired on September 3, 2002.

Appellant sent the Office of Appeals a letter dated September 7, 2002, asserting that she had never received the August 14 notice of determination. She wrote that she had found out about the notice in a letter informing her that she was required to repay $825 in benefits already received.

A referee held a hearing on October 7, 2002, and initially took up the issue of whether the appeal was timely. Appellant testified that she had never received the notice of determination. The referee found that the agency had mailed the notice of determination to appellant on August 14, 2002, the date that appeared on the form, and that appellant’s mailing address was correctly printed on the notice, and dismissed the appeal due to a lack of jurisdiction. Appellant unsuccessfully appealed the referee’s decision to the UAC.

Here, the UAC urges that the referee was legally bound under section 443.151(3)(a), Florida Statutes (2000) to dismiss appellant’s appeal because she filed it more than 20 days after the decision was mailed to the parties. The UAC notes that section 443.151(3)(a), Florida Statutes, and Florida Administrative Code Rule 60BB-5.007 do not permit any “good cause” exceptions to the dismissal rule. The Commission, however, acknowledges that Florida appellate courts have directed appeals referees to accept late filed appeals on due process grounds where the determination appealed from was not received by appellants within the time for filing an appeal. See, e.g., Koppelman v. Unemployment Appeals Comm’n, 626 So.2d 322 (Fla. 1st DCA 1993); Livingston v. Unemployment Appeals Comm’n, 620 So.2d 1103, 1104 (Fla. 4th DCA 1993); Carrigan v. Unemployment Appeals Comm’n, 616 So.2d 216 (Fla. 5th DCA 1993); Finney v. Unemployment Appeals Comm’n, 587 So.2d 637 (Fla. 4th DCA 1991); Robinson v. Florida Unemployment Appeals Comm’n, 526 So.2d 198 (Fla. 4th DCA 1988); Pierre v. Oriente Sugar Cane Planting, Inc., 504 So.2d 431 (Fla. 4th DCA 1987); but see Fryer v. Florida Unemployment Appeals Comm’n, 691 So.2d 27 (Fla. 2d DCA 1997).

The facts of this case are similar to this court’s Carrigan decision. Carrigan had applied for unemployment benefits and received a Wage and Transcript document stating that he would receive $72/week in benefits. 615 So.2d at 217. Subsequently, the Agency denied Carrigan all benefits and mailed him a determination, dated February 11, 1992, advising him of the denial. Id. On March 9, 1992, Carrigan filed a notice of appeal on which he wrote: “We just received this determination on March 4, 1992.” Id. The referee found Carrigan’s notice of appeal to be untimely because the time between the mailing date of February 11, 1992, and Carrigan’s filing of a notice of appeal exceeded the 20-day period. Id. At the hearing, Carrigan testified that he did not receive the determination until March 4,1992. Id.

This court reversed, concluding that Carrigan’s testimony was the only competent evidence of when the notice of determination was received. Id. This court noted that section 443.031 specifies that Chapter 443 is to be liberally construed and cited to Florida’s numerous cases holding that, although the appeal was not timely filed, an appeal was possible. Id. This court also reasoned:

To establish the mailing date, courts require competent factual evidence of the date of the mailing. Mere testimony of customary procedures is insufficient. Without such evidence, the date of mailing is subject to mere guesswork, and creates such uncertainty that the ends of justice are best served by allowing the appeal. We do not think that a typed notation of the “mailing date” on top of the determination is sufficient evidence to establish the mailing date, (citations omitted)(emphasis added).

Id. at 218.

This case is indistinguishable from Car-rigan. The notice of determination included a typed entry identifying: “date mailed 08/14/02.” This was the only evidence in the record to support the appeals referee’s conclusion. On the authority of Carrigan, we reverse and remand with instructions to allow appellant’s appeal to go forward on the merits.

REVERSED and REMANDED.

THOMPSON and MONACO, JJ., concur.

GRIFFIN, J., concurring and concurring specially, with opinion.

GRIFFIN, J.,

concurring and concurring specially.

If I were writing on a clean slate, I wouldn’t go quite as far as Camgan does. In my view, the typed notation is some evidence of the mailing date. If the fact-finder had this evidence and also concluded that the claimant’s testimony that he or she did not receive the decision in time to seek an appeal was not credible, the appeal could be dismissed for lack of jurisdiction. I think the fact-finder in this case could (and did) conclude that this claimant had not been deprived of due process and that the untimely filed appeal could not, therefore, proceed. But for Carrigan, I would affirm.

      . "The rationale behind these court related exceptions to the dismissal rule was that due process required that the adversely affected party must be given timely notice of the decision against him.” UAC's brief at 5-6.


text:
    Frances CANOVA, Jay Ross Canova, et al., Appellants, v. Dana Darlene SMITH, on Behalf of S.G.S., a Child, Appellee. Frances Canova, Jay Ross Canova, et al., Appellants, v. Guardianship of S.G.S., a Child, Appellees.
    Nos. 5D02-1585, 5D02-1871, 5D02-1733.
    District Court of Appeal of Florida, Fifth District.
    Sept. 26, 2003.
    Joan Stefanec Briggs, of Adams, Briggs and Briggs, Daytona Beach, for Appellants.
    Dennis Wells, of Webb, Wells & Williams, P.A., Altamonte Springs, for Ap-pellee.
   PER CURIAM.

The three pending appeals concerning the proceedings to establish the paternity and the guardianship of S.G.S., the daughter of Grace Canova and Robert Smith, have been examined separately and in relation to each other. We conclude that, notwithstanding the various procedural issues raised by appellants, there is no basis to reverse the appealed orders in the paternity proceeding. In the guardianship, the trial judge was called upon to make a difficult choice between good and loving grandparents, all of whom, as the court found, “would no doubt take good care of the child.” His decision is supported by substantial competent evidence.

AFFIRMED.

SAWAYA, C.J., SHARP, W., and GRIFFIN, JJ., concur.


text:
    Lawrence HOLLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1837.
    District Court of Appeal of Florida, Fifth District.
    Sept. 26, 2003.

      Lawrence Holley, Bristol, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Lawrence Holley appeals the summary denial of his Rule 3.850 motion pursuant to the Florida Rules of Criminal Procedure. The trial court denied the motion as untimely.

Holley was sentenced on September 27, 1999. He appealed, but his appeal was dismissed on procedural grounds. Later, Holley was able to obtain a belated appeal and have his original appeal, Case No. 5D99-3303, reinstated. This court affirmed per curiam and the mandate issued on October 1, 2001. The two-year limit for filing a Rule 3.850 motion does not begin to run until a district court mandate is issued when an appeal is taken and a per curiam affirmance is entered. See, e.g., Beaty v. State, 701 So.2d 856 (Fla.1997). Therefore, the trial court was mistaken when it calculated the two year period as ending on October 27, 2001, two-years and 30 days after Holley’s final judgment was entered.

We vacate the denial and remand for reconsideration on the merits of Holley’s motion.

Order VACATED; REMANDED.

PETERSON, GRIFFIN and PLEUS, JJ., concur.


text:
    DEER ISLAND COMMUNITY DEVELOPMENT DISTRICT, Appellant, v. DIAMONDBACK LAND COMPANY, et al., Appellees.
    No. 5D03-1170.
    District Court of Appeal of Florida, Fifth District.
    Sept. 26, 2003.
    Scott D. Clark and Jeffrey L. Kaplan, of Scott D. Clark, P.A., Winter Park, for Appellant.
    Christopher C. Cathcart, of Ossinsky & Cathcart, P.A., Winter Park, for Appellees.
   GRIFFIN, J.

We find no abuse of discretion in the trial court’s entry of a temporary injunction. The trial court should have followed Florida Rule of Civil Procedure 1.610(b), however, and determined the appropriate bond upon entry of the injunction rather than reserve ruling pending a separate evidentiary hearing. Under the circumstances, we elect to affirm in part but remand for a prompt hearing and disposition of the bond issue.

AFFIRMED in part and REMANDED.

THOMPSON and MONACO, JJ., concur.


author: KELLY, Judge.

text:
    Barbara KEITHLY, Guardian, Appellant, v. Carol VANCE, Special Monitor, and Estate of Donald Crosley, Appellees.
    No. 2D02-374.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 2003.
    Randall O. Reder, P.A., Tampa, for Appellant.
    No appearance for Appellees.
   KELLY, Judge.

Barbara Keithly, guardian of the Estate of Donald Crosley, appeals the order of the probate court requiring her to obtain, at her own expense, copies of the backs of all canceled checks related to the guardianship from its inception. We affirm.

Beginning in 1994, Barbara Keithly served as guardian for Donald Crosley. In November 2001, the probate court entered an order appointing Carol Vance as Special Monitor pursuant to section 744.107, Florida Statutes (2001). The order required Keithly to make available to the Special Monitor a variety of financial records including all bank statements and the fronts and backs of all canceled checks. Keithly was unable to produce the fronts and the backs of the checks because she did not have them. According to Keithly, the bank did not return the canceled checks with the monthly account statements but, rather, provided a photocopy of the front side of the checks. Keithly advised the probate court that she could obtain copies of the backs of the checks from the bank at a cost of approximately $3,300. The probate court ordered her to obtain the copies at her own expense.

Section 744.3678(3), Florida Statutes (2000), provides that a “guardian must obtain a receipt or canceled check for all expenditures and disbursements made on behalf of the ward.” We agree with the probate court that a copy of the front side of a check is not the equivalent of a canceled check. As noted by the probate court, Keithly was a professional guardian who should have been well aware of the requirements imposed on her under the guardianship laws. Further, had Keithly asked the bank to do so, it would have returned the actual canceled checks with the monthly account statements for a fee of $2 per month. Under these circumstances, the probate court did not abuse its discretion in ordering Keithly to obtain copies of the backs of the checks at her own expense.

Affirmed.

SALCINES and SILBERMAN, JJ„ Concur.


author: I,JOHNSON, Justice. 1 ¶VICTORY, J.,

text:
    STATE of Louisiana v. Derek TEMPLE.
    No. 2002-K-1895.
    Supreme Court of Louisiana.
    Sept. 9, 2003.

      Richard P. Ieyoub, Attorney General, Eddie J. Jordan, Jr., District Attorney, Donna R. Andrieu, Catherine L. Bartholomew, Counsel for Applicant.
    Sherry Watters, New Orleans, Counsel for Respondent.
   I,JOHNSON, Justice.

We granted this writ of certiorari to determine whether a search of defendant’s female companion, which led to the discovery of contraband and defendant’s subsequent arrest, was constitutional pursuant to the Fourth Amendment to the United States Constitution. After a thorough review of the record and the applicable law, we find that the contraband was seized without probable cause and should have been suppressed by the trial court. Accordingly, we affirm the decision of the court of appeal.

FACTS AND PROCEDURAL HISTORY

On October 18, 1996, at approximately 11:30 p.m., New Orleans Police Department officers Christopher Davis and Patrick Garner responded to a call of an attempted burglary in the 600 block of Felicity Street in the St. Thomas housing development. The victim of the alleged burglary attempt informed the officers that four individuals had attempted to enter her apartment without her permission. Officer Davis testified that he and Officer Garner canvassed the front and rear of the apartment building and observed four individuals sitting on a porch step. Officer Davis testified that he noticed that one of the individuals “quickly leaned against the wall” when he |2saw the officers. According to Officer Davis’ testimony, he, Officer Garner, and a third officer, Officer Hudson Cut-no, “formulated a plan to try to stop the persons to interview them for, ah, interview purpose or whatever .... ” Officers Davis and Garner approached the group from one side of the building, and Officer Cutno approached the group from the other side.

Upon seeing the officers, the only female in the group, Christine Johnson, sat down and defendant, Derek Temple, sat down next to her. Officer Davis testified that he observed defendant hand Johnson a white object, which Johnson quickly placed in her pocket and attempted to walk away. At that point, all four individuals were detained by the police officers.

The officers subsequently called for assistance so that Johnson could be searched by a female officer. Officer Lizell Brooks responded to the call and conducted a “pat-down” search of Johnson’s person. Officer Brooks ultimately seized 141 pieces of rock cocaine and 60 bags of powder cocaine from Johnson’s pocket. All four individuals were transported to the Sixth District station.

Officer Davis stated that upon their arrival at the station, Johnson told police that defendant had given her the object and told her to “hold it for him.” Johnson and the other two subjects were not charged with any offense.

On February 6, 1997, the state charged defendant with one count of possession of cocaine with intent to distribute, in violation of R.S. 40:967(B)(1). On April 7,1997, the trial court denied defendant’s motion to suppress the evidence and Johnson’s | .^statement. On April 30, 1997, a jury found defendant guilty as charged. Thereafter, the state filed an habitual offender bill, and on September 10, 1997, the trial court adjudicated defendant a fourth felony offender. On November 7, 1997, the trial court sentenced defendant to life imprisonment without benefit of parole, probation, or suspension of sentence.

On appeal, counsel raised the sole issue of denial of motion for continuance, but the court of appeal determined that no such motion had in fact been requested and thus, dismissed defendant’s appeal for failing to assert any assignments of error for review. State v. Temple, 98-0571 (La.App. 4th Cir.6/30/99), 739 So.2d 1028 (not designated for publication). Subsequently, by order of the Fourth Circuit, the trial court granted defendant an out-of-time appeal on June 30, 2000.

Thereafter, the Fourth Circuit reversed defendant’s conviction and sentence based on its determination that the officers did not have reasonable suspicion to stop and search the subjects, and thus, found that the trial court had erred in denying defendant’s motion to suppress. State v. Temple, 01-1460 (La.App. 4th Cir.6/19/02). Following this adverse ruling, the state sought review in this Court. By order dated [4January 31, 2003, this Court granted the state’s writ application. State v. Temple, 02-1895 (La.1/31/03), 836 So.2d 55.

DISCUSSION

The question of whether the evidence was properly admitted at defendant trial turns on two key factors: (1) whether the police officers had reasonable suspicion to make an investigatory stop of defendant and the other individuals sitting on the porch, and (2) whether the police officers had probable cause to search the individuals.

Although La.C.Cr.P. art. 215.1 permits an officer to stop a citizen in a public place and question him, the right to make such an investigatory stop must be based upon reasonable suspicion that the individual has committed, or is about to commit, an offense. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 899 (1968); State v. Andrishok, 434 So.2d 389, 391 (La.1983). If an officer stops a person pursuant to art. 215.1, the officer may conduct a limited pat down frisk for weapons if he reasonably believes that he is in danger or that the suspect is armed. La. C.Cr.P. art. 215.1(B). Determining whether “reasonable, articulable suspicion” existed requires weighing all of the circumstances known to the police at the time the stop was made. State v. Williams, 421 So.2d 874, 875 (La.1982).

In making a brief investigatory stop on less than probable cause to arrest, the police “ ‘must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ ” State v. Kalie, 96-2650, p. 3 (La.9/19/97), 699 So.2d 879, 881 (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). The police must therefore “articulate something more than an “ ‘inchoate and unparticularized suspicion or “hunch.” ’ ” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. at 1883). This level of suspicion, however, need not rise to the probable cause required for a lawful arrest.

|KIn determining whether the police possessed the requisite “ ‘minimal level of objective justification’ ” for an investigatory stop based on reasonable suspicion of criminal activity, Sokolow, 490 U.S. at 7, 109 S.Ct. at 1585 (quoting INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984)), reviewing courts “must look at the ‘totality of the circumstances’ of each case,” a process which “allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ ” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740 (2002)(quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)); see also State v. Huntley, 97-0965, p. 1 (La.3/13/98), 708 So.2d 1048.

In reviewing the totality of circumstances, the reputation of an area is an articulable fact upon which a police officer may legitimately rely and is therefore relevant in the determination of reasonable suspicion. State v. Buckley, 426 So.2d 103, 108 (La.1983) (citing United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)). The assessment by a reviewing court of the cumulative information known to the officers avoids a “divide-and-conquer analysis” by which the whole becomes less than the sum of its parts because each circumstance examined individually may appear “readily susceptible to an innocent explanation.” Arvizu, 534 U.S. at 274,122 S.Ct. at 751.

At any rate, cases have held that the pertinent facts and circumstances must be articulated, i.e., testified to in court by law enforcement officials. For example, in State v. Hughes, 99-2554 (La.App. 4th Cir.5/31/00), 765 So.2d 423, writ denied, 00-1981 (La.6/1/01), 793 So.2d 179, the Fourth Circuit reversed Hughes’s conviction for possession of crack cocaine in a case in which the officers observed Hughes place something white in his pants pocket, then hurry into a nearby grocery. The officers | ^neglected to testify that the area around Olive and General Ogden streets was known or drug-trafficking. One officer conceded that he based his belief that Hughes was involved in drug activity upon his “19 years of experience as a police officer.” The appellate court found this was little more than a hunch, and ruled that the state failed to elicit adequate information from the officers for a finding of reasonable suspicion to support the detention of Hughes. Hughes, 99-2554 at 6, 765 So.2d at 426-27.

Similarly, in State v. Ellington, 96-0766 (La.App. 4th Cir.9/4/96), 680 So.2d 174, the appellate court affirmed a judgment granting a motion to suppress. There, the police officer testified that he saw the defendant standing in an area known for high drug activity, and, upon seeing the marked police car, the defendant put his hands in his pocket as if attempting to conceal something. Thinking that this activity was suspicious and that the defendant was trying to conceal something in his pocket, possibly drugs, the officer stopped the defendant and conducted a pat-down search.

A folding knife was found in the defendant’s right rear pants pocket. The officer then shined a flashlight into the same pocket and found a glass vial containing cocaine residue. The Fourth Circuit found that the “particular facts” as testified to by the officer were not sufficient to justify the stop of the defendant. Further, the officer did not testify that he saw the defendant engaging in what appeared to be a drug transaction, or that he saw a suspicious object, which the defendant attempted to conceal. Finally, the Fourth Circuit stated that even if the initial stop was justified, the subsequent pat-down frisk of Ellington was not because La.C.Cr.P. art. 215.1 only allowed a frisk of outer clothing for a dangerous weapon. Ellington, 96-0766 at 3, 680 So.2d at 176.

Likewise, in State v. Williams, 621 So.2d 199 (La.App. 4th Cir.1993), the defendant was seen standing in a courtyard of a housing project. When he saw the police officers, “he turned immediately and quickly walked away.” The officers alsoL saw him “fooling with his belt area.” The trial court denied the defendant’s motion to suppress the pipe that the officers seized after Williams was stopped and frisked, but the Fourth Circuit reversed the trial court’s ruling, finding that these facts did not justify the initial stop of the defendant, and even if the stop was legal, the officers provided no evidence to justify the subsequent pat-down frisk. Williams, 621 So.2d at 201.

In this case, the record does not support a conclusion that the police officers believed that they had just witnessed an illegal drug transaction when they observed defendant placing a white object into Johnson’s pocket, nor was there an exchange of the object for money. Thus, the appellate court found that the officers lacked reasonable suspicion for the stop based on the ambiguous observations of the officers. We agree.

The Fourth Amendment to the United States Constitution protects American citizens from unreasonable searches and seizures, including the persons who socialize on steps and street corners in urban America. Reasonable suspicion for a stop is more than “looking nervous” and sitting on a porch step in a “high crime area.” As noted above, the police officers came across the four individuals in question while investigating a call of an attempted burglary. Nothing in the record establishes that the officers had a reason to focus on these individuals. The alleged victim of the alleged attempted burglary did not provide the officers with a description of the persons who had attempted to enter her apartment. Thus, there was no suspicion that the individuals herein were even involved in that crime or any other wrongdoing. We must presume that citizens are law abiding, even those in public housing developments and other targeted high crime areas.

Moreover, nothing in the record establishes probable cause to search any of the individuals, much less the inside of Johnson’s pocket. The court of appeal found that even if the initial stop were legal, the officers lacked any basis to believe that Johnson |swas armed. Accordingly, the court concluded that the subsequent pat-down search of Johnson violated the Fourth Amendment. Temple, 01-1460 at 6. The court noted that Officer Brooks did not testify that the object she felt in Johnson’s pocket was readily identifiable as contraband and thus the seizure did not fall into the “plain feel” exception to warrant requirement. Id. at 8. Finally, the court concluded that Officer Brook’s search of Johnson was not authorized by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 899 (1968), or by any exception to the warrant requirement, and the seizure of crack and powder cocaine was unconstitutional. Likewise, the court held that Johnson’s statement implicating defendant also should have been suppressed. Id.

We agree. During their testimonies, none of the officers expressed a concern for their safety which would justify a protective frisk. However, even if the pat-down was justified, none of the evidence indicates that the content of Johnson’s pocket was readily identifiable by its “plain feel.” In State v. Broussard, 00-3230, (La.5/24/02), 816 So.2d 1284, this Court applied the “plain feel” exception to the warrant requirement recognized in Minnesota v. Dickerson, 508 U.S. 366, 377, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334 (1993). Quoting Dickerson, this Court stated:

If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.

Broussard at 1289. In Broussard, unlike the instant case, the officer testified that based on his knowledge and experience as a narcotics officer, he knew that narcotics and firearms have a known association. The Court found that the officer’s expression of concern for his own safety and that of the other officers provided an articula-ble basis for a protective frisk. The officer stated that during that pat-down, he felt lumps |9and heard the crinkle of plastic from Broussard’s pocket, which he knew from his years of experience to be consistent with drug packaging of crack cocaine. Thus, the Court held that the evidence was obtained by lawful means. Broussard, 00-3230 at 7-8, 816 So.2d at 1288-89.

Officer Brooks’ testimony is completely devoid of any description of her pat-down of Johnson and of any perceptions she may have had during that pat-down. There was no statement that the officer saw or felt any lump or that she heard a crinkle of plastic coming from Johnson’s pocket. Officer Brooks’ testimony added nothing upon which to support a “plain feel” exception. To the contrary, it is apparent that the officer conducted a focused search inside the specific pocket, presumably after being informed of the location of the white object by the officers present at the scene.

Moreover, there is nothing to justify a search of the individuals’ persons incident to a lawful arrest, as the facts do not give rise to probable cause to make an arrest. As a general matter, police officers may make warrantless arrests if probable cause exists, that is, “when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime.” State v. Cojoe, 01-2465 (La.10/25/02), 828 So.2d 1101, 1104; State v. Marks, 337 So.2d 1177, 1182 (La.1976) (citing Beck v. Ohio, 379 U.S. 89, 90, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)); La.C.Cr.P. art. 213. Whether probable cause exists to arrest a suspect is determined under the totality of the circumstances known to the officers at the time of the arrest. State v. Moreno, 619 So.2d 62 (La.1993).

In this case, Officer Davis testified that while standing twenty feet away from the individuals in question, he observed defendant place a white object into Johnson’s hand or pocket. The officer admitted that he could not tell that the white object was contraband at the time of the observation. Furthermore, prior to the female officer’s |inarrival on the scene, the officers had searched the three males and had found no weapons, drugs, drug paraphernalia, large amounts of money, beepers, or any other items indicative of drug activity. Thus, given the totality of the circumstances surrounding the search and seizure, the officers did not have probable cause to arrest the individuals and to search them incident to an arrest.

CONCLUSION

For the reasons outlined above, we find that the contraband was seized without probable cause and should have been suppressed by the trial court. Accordingly, we affirm the decision of the court of appeal.

VICTORY, J., dissents and assigns reasons.

TRAYLOR and WEIMER, JJ., dissent for the reasons assigned by VICTORY, J.

1 ¶VICTORY, J.,

dissenting.

I dissent from the majority opinion because, in my view, the police had probable cause to arrest both defendant and his female companion, and therefore the search was valid. Giving due deference to the skill of a trained police officer in the context of the other circumstances known to the officer, including the lateness of the hour, the high crime character of the area, the nervous demeanor of the group of four individuals, defendant’s abrupt movement to the wall, his immediate seating himself beside Johnson, his furtive placement of a white object into her pocket, followed by their attempt to walk away, the evidence was sufficient to put a trained officer on notice that, more probably than not, a crime had just been committed in his presence, i.e., possession and/or distribution of drugs.

Further, contrary to the majority’s finding that “the record does not support a conclusion that the police officers believed that they had just witnessed an illegal drug transaction when they observed defendant placing a white object into Johnson’s pocket,” Op. at 861, Officer Davis testified at the hearing on the motion to suppress the evidence that he believed the white object was contraband. He testified that from a distance of 20 feet away, he observed defendant hand Johnson a white object. He elaborated:

A: When she quickly sat — when she sat down, he quickly sat next to her, went inside his pocket, gave whatever the contraband was to her, and then she attempted to walk away.
Q: And so she put it — he gave it to her in her hand?
A: She — no, it wasn’t in her hand. They were sitting next to each other. When he took the object out of his pocket, I noticed it was a white 12object. Put it in — he then put it in her pocket, helped her put it in her pocket, whatever.

After hearing this testimony, the trial judge was satisfied that the officers had reasonable suspicion to conduct an investigatory stop of the subjects, which led to the discovery of the drugs. The trial court obviously credited Officer Davis to mean that he believed the white object to be drugs, especially when he referred to the object as contraband, as the court denied the motion to suppress the evidence without hesitation and without objection from defense counsel. Accordingly, as shown by Officer Davis’s motion hearing testimony, Officer Davis had probable cause to arrest upon seeing defendant place what he believed to be contraband drugs in the pocket of Johnson.

Thus, under these circumstances, having witnessed what he believed to be a crime, Officer Davis was justified in arresting the subjects and conducting a search, incidental to that lawful arrest. See La.C.Cr.P. art. 213(1) (An officer may make a war-rantless arrest when the person to be arrested has committed an offense in his presence).

For the above reasons, I respectfully dissent.

TRAYLOR and WEIMER, JJ., dissent for the reasons assigned by VICTORY, J.

      . Officer Cutno did not testify at the motion hearings or at trial.

      . On cross examination, Officer Davis testified that defendant took the object out of his pocket and “put it in [Johnson's] pocket, helped her put it in her pocket, whatever.”

      . At trial, Officer Brooks testified that male officers "tend not to want to touch females because of complaints.” In fact, deference of male police officers to female officers in conducting the frisk of female suspects appears a common, if certainly not exclusive, practice throughout the country. State v. Adams, 01-3231 (La. 1/10/03), 836 So.2d 9.

      . On April 30, 1997, during a break in jury selection, the trial court put the following information on the record:
      At 9:22 a.m., with jury selection already under way ... Ms. Vix [defense counsel] had asked for a bench conference. The purpose of the bench conference was to indicate to the Court that a note had been just given to her that Mr. Harry Boyer, a private attorney, was on the telephone indicating that he had been retained, just retained by the family, apparently, of this gentleman and wanted to know if this case would be continued. The Court advised Ms. Vix to tell Mr. Boyer that the Court would not allow the case to be continued at this late hour with jury selection already under way. I had never heard from Mr. Boyer or from anyone else indicating that they would — they, he or Mr. DeSalvo, his law associate, were going to come to this courtroom in this case at any hour, and more particularly not at 8:00 o’clock in the morning when everyone knows, including those gentlemen, that this court begins. (Tr. dated 4/30/97 at 34).

      . Further, although the officers did not testify as to the details of the search at trial, Johnson gave a statement at police headquarters that, when Officer Brooks arrived to search her, she told Officer Brooks that defendant had put something in her pocket, whereupon Officer Brooks searched her pocket and seized the drugs.